Tuesday, June 16, 2009

Dividing 401k Accounts In Divorce

The Marriage Zone: Dividing 401k Accounts In Divorce
By Christopher C. Meyer
© June 2009

What happens to your 401k account or your spouse’s 401k account if you get divorced? This question comes up routinely since the 401k has largely displaced the traditional pension as a retirement vehicle.

When dividing a 401k account in a divorce, just like with any other account, the first question that must be asked is whether the 401k is marital property. Assuming that the 401k funds were all earned during the marriage, the account is marital and subject to division by the Court. Marital property 401k accounts are usually divided equally between the parties in a divorce.

Since a 401k will be in only one spouse’s name, how does the other spouse get their share in a divorce? Most 401k plan providers like Fidelity require a “qualified domestic relations order” (QDRO) in order to divide the account. The QDRO is not difficult to get. The parties stipulate to the language of the order and the Court reviews and signs it usually within a few days of filing with the Court. The 401k account providers are very particular about the precise language they require to be in the QDRO. There are attorneys who specialize in drafting QDROs and your attorney will likely use the services of such a specialist to draft your QDRO.

After the Judge signs the QDRO, a certified copy of the signed QDRO is sent to the plan provider who divides the account as ordered. The plan provider often simply creates a new account for the other spouse and transfers half the balance to that new account in the other spouse’s name. So, instead of one account in John’s name with a balance of $100,000, there will now be one account in John’s name with a balance of $50,000 and one account in Mary’s name with a balance of $50,000.

Folks often wonder if there are any tax consequences if a 401k account is divided in a divorce. A 401k is a tax-deferred retirement account. However, there are no tax consequences of merely dividing a 401k in a divorce pursuant to a Court order. Keep in mind that there may be tax consequences after a divorce if you withdraw funds from a 401k before you are retired.

Just like any other marital property account, a 401k account can be divided in a divorce, but this will usually require some complicated paperwork.

This article is for informational purposes only and does not constitute legal advice about your case.

Chris Meyer is an attorney practicing family law in Northern El Paso County. Chris’ law practice is limited to domestic relations cases. Chris has been practicing law since 1977. He is a former prosecutor and is licensed to practice law in Colorado, Florida, California and Wisconsin. Chris can be contacted at 719-488-9395. Chris’s website (www.cmeyerlaw.com) has additional divorce and family law information and many other articles.


dsrussell said...

Doesn't this statement misalign itself with crs 14-10-113 ss 6(a)? in that the crs only includes 401(a), 403(b) and 457.

Roger Williams said...

A divorce process includes many things like monetary settlement, paper work etc. In monetary settlement it is important to know about 401k account and How it will be divided? Thanks for describing 401k account to us and several aspects about it that you have mentioned in your blog. Thanks again for sharing this post.fort lauderdale divorce attorney

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