For those of you who have accumulated retirement benefits like 401(k), 403b, annuities, and IRAs, you should know that these are also subjected to equitable distribution. Retirement plans are treated in the same manner as all other marital property, so one of the most important steps in dividing up your property is to determine where the property falls in the distribution.
Marital property is real property (houses and real estate) or personal property (cars, furniture, etc.) that is acquired during the marriage and before the separation period. When you are dividing your assets with your spouse, ask yourself, “Was this retirement plan obtained while we were married and before we separated?” If the answer is during marriage, then more than likely, that retirement plan will be considered in the equitable distribution of your assets. Some retirement plans can be considered “separate property” if the plan was acquired prior to the marriage, but be careful! If the retirement plan grew and flourished throughout the marriage, your spouse may have rights to that flourishing portion, leaving you solely with the amount that had been acquired before marriage.
Once you answer your own question and acknowledge that the retirement plan was acquired during the marriage, you must then give the retirement plan value. It is in everyone’s best interest to consult someone who is knowledgeable about these types of accounts so that they can determine the true value. Every retirement plan’s value cannot be obtained as simplistically as looking at an IRA, which allows you to just look at the value on the date of separation. Some of the accounts require high-level math. For example, with some annuities, one must look at the true value of the asset at the time it was established, and then look at the interest that has been added and lost in the stock market exchange. The actual value may not be the 110% increase that you see at the time of separation. You don’t want to give your spouse more than you have to, do you? If not, make sure that you make the investment and hire an expert to ensure that you leave the distribution with everything that the law allows.
Now that you have given your retirement plan value, you are ready to distribute your assets appropriately. This step can also have its complications because the recipient of the assets needs to determine how they will receive the distribution. Will you or your spouse need a Qualified Domestic Relations Order (QDRO), which will allow you to defer the income so to avoid tax penalties? Will you or your spouse choose to forgo collecting on the retirement plan in exchange for some other asset? These are very serious questions that you will need to consider with the consult of counsel and you accountant. Each retirement plan has its own set of complex rules, so protect your interests!
Ultimately, it is important that you leave the marriage with everything that you are entitled to. So, help your lawyer help you. Identify the property, give it value, and determine the proper distribution for your retirement plan.