• Home
  • Divorce Mediation
  • Divorce Consulting Expert
  • Coaching
    ▲
    • Co-Parenting Coaching
  • All Services
    ▲
    • Collaborative Divorce
    • Divorce Mediation
    • Divorce Consulting Expert
    • Divorce Support Groups For Men
    • Divorce Support Groups For Women
    • Divorce Coaching
    • Co-Parenting Coaching
    • Post-Divorce Transition Support
    • For Attorneys
      ▲
      • Business Valuation Services
      • Forensic Accounting
      • Collaborative Divorce
      • Denise French
      • Shelli Dodson
  • Blog
  • About
  • Work With Us
    ▲
    • Contact
    • Schedule An Appointment
    • Pay Now
  • Post Divorce Transition Support
    ▲
    • Men’s Support Group
    • Women’s Support Group
    • Community Services
  • Skip to main content
  • Skip to primary sidebar
  • Skip to footer

281-505-8177
CONTACT US

SCHEDULE A
FREE CONSULTATION

Contact Us: 281-505-8177

Divorce Strategies Group

Divorce Strategies Group

Denise French

  • Divorce Mediation
  • Divorce Financial Advisor
  • Coaching
    • Divorce Coaching
    • Co-Parenting Coaching
  • All Services
    • Divorce Mediation
    • Divorce Financial Advisor
    • Divorce Support Groups For Men
    • Divorce Support Groups For Women
    • Divorce Coaching
    • Co-Parenting Coaching
    • Post-Divorce Transition Support
    • Collaborative Divorce
    • For Attorneys
      • Business Valuation Services
      • Forensic Accounting
      • Collaborative Divorce
  • Work With Us
    • Contact
    • Schedule An Appointment
    • Pay Now
  • For Attorneys
    • Business Valuation Services
    • Forensic Accounting
    • Denise French
    • Shelli Dodson

Divorce and Retirement Accounts

September 5, 2020 By Denise French, CVA, MAFF, CDFA, CRPC Leave a Comment

The valuation and division of retirement accounts in divorce is more complex than most divorcing couples expect.  We frequently see people after the fact who wish they had known better before they signed papers to finalize their estate division.  The details are important.  Below are four common items to know about before you sign on the dotted line.

1. Does a retirement account only belong to the person whose name is on the title?

What if only one spouse worked for most of the marriage while the other was the primary caretaker for the home and children?  If that’s the case, most of the retirement assets are likely only in one spouse’s name. Despite the titling, these retirement assets acquired during the marriage belong to the community estate and are fully subject to division in a divorce.  It is common for clients who own retirement accounts to believe they are entitled to the entire account since it’s in their name. However, money earned during the marriage is a marital asset and subject to division in a divorce within a community property state like Texas.

In contrast, retirement assets earned prior to the marriage are typically considered separate assets and not subject to division in the divorce. In addition, the growth on those separate assets during the marriage is considered separate property (but not the income, yes, it gets confusing). For an accurate appraisal of what portion of a retirement account is separate versus and what portion is marital, a separate property accounting must be conducted.  The burden of proof is on the person making the separate property claim.  All assets, no matter what the title says, belong to each spouse equally if the asset was acquired during the marriage, except for those assets which were inherited or gifted during the marriage or came from a personal injury suit.

2. How will we be taxed if we divide a retirement account?

You are not necessarily taxed on the division of a retirement account. Taxation happens only if you distribute the retirement account outside of the retirement vehicle.  For example, if your spouse has a large 401(k) and you divide it during the divorce, no problem.  You can move these funds into an IRA for yourself without paying any tax and let it continue to grow tax deferred. The same rules apply if you are dividing an IRA.  You only acquire a tax liability when you redeem the funds from the retirement chassy and put them into your bank account or a non-retirement brokerage account.

3. Which retirement assets are best to keep in a divorce?

Not all retirement assets are equal as far as the IRS is concerned, which means what you get to keep in your pocket differs – sometimes substantially- between different retirement accounts! This is a synopsis of the different types of retirement assets we commonly see with divorcing couples in our office.  We also provide a discussion of liquidity as having liquid, available cash is king in a divorce.

Pension Plans

Pension plans typically rate lowest on the list of assets to obtain because those funds are not liquid today (unless you are at retirement age). Further, each plan has its own rules surrounding availability of the pension funds to the ex-spouse. Some funds mandate you wait for your ex-spouse to retire while others will let you retire on your own timeline after you have reached a certain age which can be anywhere from 50 to 65.  Pension plans may also offer a lump sum option at retirement – it just depends on the company or entity offering the plan. There is also the issue of company solvency – will this pension plan even exist when you are retirement age?   It is also important to know if you are entitled to assets if your spouse dies before the pension plan begins – some entities don’t pay you at all if your spouse dies before the payout has started, even with a divorce decree.

It is wise to involve a Certified Divorce Financial Analyst or CDFA in cases with a pension as they can help you understand your options and make those phone calls for or with you.  Know the rules of your potential pension plan before you sign any binding documents

Traditional IRAs

IRA’s typically rank lower on the scale of available, liquid assets because withdrawals are usually taxed at the owner’s highest marginal tax rate and incur a 10 percent penalty until age 59.5 (barring the exceptions of substantially equal periodic payments for those typically 50 and over, death and disability).   There are no divorce exceptions to the penalty as there are in a 401(k) which is why we prefer our clients are awarded the 401(k) assets rather than the IRA assets if there is a choice.

401(k), Profit Sharing Plans and other ERISA-Regulated Plans

ERISA regulated plans (such as 401k’s and Profit Sharing Plans) are one step above the Traditional IRA regarding assets available for liquidity as you can redeem cash from your ex-spouses 401k plan without paying the 10% penalty, but you still must pay taxes.  That is a big savings – especially in larger plans.  You can save thousands in fees by just taking the 401(k) over the IRA if you are in need of cash from the retirement assets.

The down side is a federally mandated 20% withholding on all cash distributions. For example, if you want $80,000 in cash from your ex-spouses 401k, you’ll need to withdrawal $100,000 as 20% ($20,000 in this example) will automatically be forwarded to the IRS.  You are not losing that money – you’d owe it in taxes anyway you are just forced to pre-pay your taxes.  If you do not owe the full 20% at tax time you will receive a refund or if you owe more, they will certainly let you know when you complete your taxes the following year.  The other negative is 401(k)’s can only be awarded via a Qualified Domestic Relations Order or QDRO.  QDRO’s cost an additional fee of $500 – $1,500 and they take time and work to finalize.

ROTH IRAs

ROTH IRA’s are the most advantageous retirement asset for liquidity needs during or after divorce. The principal put into a ROTH IRA can be withdrawn tax and penalty-free at any time for any reason.  The earnings on the ROTH IRA are different.  The earnings can be subject to taxation and the 10% early withdrawal penalty (before age 59.5) but you are able to take all of the principal before touching the earnings.  For example, if you have a ROTH IRA worth $40,000 today which you originally invested 15,000 in; the $15,000 is principal and the other $25,000 is earnings.  In this example, you can redeem the $15,000 with zero penalty and zero taxation while the rest can be left alone to grow.

4. Should you consider the value of retirement accounts after taxes when dividing assets in a divorce?

Many attorneys will “tax effect” retirement plans (discounting the account by the recipient’s marginal or effective tax bracket). Left unchecked, the spouse receiving more of the retirement accounts may benefit (possibly unfairly) in negotiations from this practice.  However, if your spouse is not playing fairly and trying to stick you with all the retirement accounts while they take all the cash, a tax effecting is in order.  Tax effecting can be as simple as taking 20% – 28% off the value of the retirement account and dividing that.  Or, it can be as complex as determining your effective tax rate and considering what assets will actually have to be used and tax effecting just those by the actual amount of tax you will pay this year (and possibly projecting out to the next few years).    By preparing financial projections, a CDFA can assess the amount and timing of the recipient’s anticipated withdrawals and tax liabilities from retirement accounts.

Questions About Divorce and Retirement Accounts? Let us help.  Retirement accounts are complicated, especially in divorce. Understanding tax implications and liquidity are critical in divorce negotiations.  You only have one shot to get this right.  Ensure you are receiving the settlement that’s best for you by having the right people on your team. Contact Divorce Strategies Group for a complimentary 30 minute phone consultation to discuss your specific needs.

Filed Under: Divorce Finance Tagged With: #divorce recovery group, #divorcesupport, alimony, attorney, child support, divorce, divorce attorney, divorce lawyer, divorce mediation, grey divorce, mid-life divorce

Reader Interactions

Leave a Reply Cancel reply

Your email address will not be published. Required fields are marked *

Primary Sidebar

Recent Posts

  • High Stakes, High Net Worth:
  • Why Choose Mediation Instead of Court?
  • New Year New You: Three Resolutions Worth Making
  • Texas Divorce Mediation
  • Back to School Basics for Busy Co-Parents

Recent Comments

    Archives

    • January 2023
    • December 2022
    • August 2022
    • June 2022
    • May 2022
    • January 2022
    • June 2021
    • May 2021
    • April 2021
    • March 2021
    • February 2021
    • January 2021
    • December 2020
    • November 2020
    • October 2020
    • September 2020
    • August 2020
    • July 2020
    • June 2020
    • May 2020
    • April 2020
    • March 2020
    • February 2020
    • January 2020
    • December 2019
    • November 2019
    • October 2019
    • September 2019
    • August 2019
    • July 2019
    • June 2019
    • May 2019
    • April 2019
    • March 2019
    • February 2019
    • January 2019
    • November 2018
    • August 2018
    • July 2018
    • June 2018
    • April 2018
    • February 2018
    • January 2018

    Categories

    • Alternative Dispute Resolutions
    • Dividing Property
    • Divorce Coaching
    • Divorce Finance
    • Divorce Support
    • Family & Children
    • Mediation
    • Uncategorized

    Meta

    • Log in
    • Entries feed
    • Comments feed
    • WordPress.org

    Footer

    Copyright © 2023 - All Rights Reserved | Web Design by The Crouch Group | Log in