In many divorces, the division of assets is the most complex and time-consuming part of the entire process. It’s especially hard in long marriages where both partners have built up assets and completely intermingled their financial futures. Retirement accounts can be particularly challenging to divide, due to their significant value and their propensity for growth. The use of Qualified Domestic Relations Orders can streamline the division process and ensure that the divorcing couple doesn’t incur any unexpected penalties or taxes.
If you’re preparing for divorce in Charleston, working with an experienced divorce attorney can save you time, money, and stress. Set up a consultation with Pence Law Firm now by calling us at 304-407-7852.
What is a QDRO?
A Qualified Domestic Relations Order is a legal order that specifies the way in which pensions and retirement plans are divided during a divorce. This is due to the fact that you often cannot simply withdraw from your retirement account and give your ex-spouse the amount they’re entitled to under your divorce agreement.
Early withdrawals from retirement accounts can result in heavy penalties and taxes. In this situation, you aren’t taking from your retirement account to use it prior to retirement—you are just giving your ex-spouse what they are entitled to. For that reason, you want to protect the value of your accounts and avoid mishaps by using a QDRO. Furthermore, both state and federal laws have specific rules about how retirement funds can and cannot be accessed. A QDRO ensures that your division of these accounts is compliant with all relevant laws.
When a QDRO Is and Isn’t Required
While a QDRO is a useful tool in a divorce, it isn’t always necessary. It’s crucial to work with a knowledgeable divorce attorney who can use the right tools and legal orders to streamline your division of assets. In general, accounts that are governed by the ERISA (Employee Retirement Income Security Act) do require a QDRO. Per ERISA, retirement interests can be split up only if there is a judgment, decree, or order that can be considered a Qualified Domestic Relations Order. If your retirement account is from an employer-provided retirement plan, there’s a good chance you’ll need a QDRO to split it up without legal or financial issues.
However, there are retirement accounts that do not require a QDRO. In these situations, you can split up your retirement account as long as it is specified in your divorce agreement. Retirement accounts not requiring a QDRO include IRAs, some government retirement plans, and some specific types of pensions and annuities. However, there are rarely hard and fast rules when it comes to money and divorce, so it’s best to discuss your specific accounts with an attorney.
Note that whether or not your accounts require a QDRO, the money transferred between spouses will likely need to be handled in a very specific way to avoid financial penalties. For example, an IRA must be divided up in the divorce decree. The funds that are transferred must then be transferred into the receiving spouse’s own IRA. If the receiving spouse simply takes their share in cash and holds onto it, they will likely owe federal income taxes on it and pay a 10% penalty.
Determining Each Party’s Share
A big part of this is determining what each spouse is entitled to during divorce. Much depends on when the account was created and when money was added to it. If one spouse came into the marriage with money in their retirement account, that amount may be considered a separate asset. However, the rest may then be subject to division. If the entirety of the account was earned while the couple was married, the whole account will likely be subject to division.
Plan for Your Divorce with Pence Law Firm
Divorce can be complicated, and you’re bound to have lots of questions. When you choose Pence Law Firm, you’ll have quick access to experienced attorneys who are ready to help you with your West Virginia divorce. Get started now by calling us at 304-407-7852 or reaching out to us on our website. We’ll get your free consultation scheduled and start planning.