Pensions, 401(K)s and IRAs in Divorce

Pensions, 401(k)s and IRAs in divorce are often among the largest assets divided during the property division. Below is a quick primer on how these assets may be addressed during your divorce.

Most retirement accounts fall into one of two categories: (i) Defined Contribution Plans or (ii) Defined Benefit Plans.

A “defined contribution plan” is a plan in which the employee and/or employer make monthly defined contributions to a qualified retirement account in the employee’s name. 401(K) accounts, Individual Retirement Accounts (IRAs) and the Thrift Savings Plan (TSP) are perhaps the most common defined contribution plans.

A “defined benefit plan” is a pension. An employee accrues this benefit as he or she works and then receives a monthly defined benefit upon retirement based on a predetermined formula. The Federal Employees Retirement Systems (FERS), Civil Service Retirement Systems (CSRC), and Virginia Retirement Systems (VRS) are all examples of defined benefit accounts. Similarly, military pensions, foreign-service pensions, and other civil service pensions are defined benefit plans.

Like other forms of property the divisible portion of a retirement account is likely limited to that portion acquired between the date of the parties’ marriage and the date of the final separation for purposes of divorce. For example, say you’ve been contributing to your 401(K) retirement account (a defined contribution account) for a total of 20 years. You contributed to that account for 5 years prior to your marriage and then for another 15 during your marriage. The 15 years of contributions during your marriage is likely the “marital property” subject to division and the 5 years of contributions prior to the marriage is likely your “separate property.” Thus, if your spouse was awarded one-half of the marital share of your retirement account, he or she would receive an amount equal to 7.5 years of your contributions (e.g. one-half of 15), plus gains and losses on that share through the date of division.

Dividing a defined benefit account works much the same way. Say you have 20 years of credible service with your employer – you worked for 5 years prior to your marriage and then for another 15 during your marriage. If your spouse was awarded one-half of the marital share of your pension, he or she would receive an amount equal to 7.5 years of your contributions, plus gains and losses on her share through the date of division. With a pension, however, the award is typically expressed as a fraction: the numerator being the total number of months of credible service during the marriage and prior to separation and the denominator being the total number of months of credible service through the date of retirement. This fraction is then multiplied by one-half.

Dividing a qualified retirement account typically requires the entry of a special order that effectuates the transfer without either spouse incurring an early withdraw penalty or contribution limit. Sometimes these orders are referred to as Qualified Domestic Relations Orders (QDROs), though the precise document you will need will depend on the nature of the account being divided.

If significant retirement assets are at issue in your divorce, I encourage you to speak with an attorney. Often the consequences of small errors in the division of these assets or the wording of the orders themselves can have large consequences. Also, a fair amount of gamesmanship may occur during the process such as withdraws from accounts for questionable purposes, forgotten or concealed loans taken from accounts, or, in the case of military pensions, shielding a portion of the pension by claiming disability.

Jason A. Weis, Esquire – Curran Moher Weis P.C. – jweis@curranmoher.com – 10300 Eaton Place, Suite 520, Fairfax, VA 22030 – 571-328-5020.