Dividing Retirement Plans - Know All the Pieces

The following article talks generally about tax consequences of dividing retirement accounts in divorce. Be aware that taxes are only one piece of what is addressed within a QDRO. All too often, the decree or agreement simply states that the retirement plan should be divided equally. This is not enough for those plans that have additional aspects, like survivor benefits, cash contributions that can be withdrawn, loans and much more.

Your attorney should be aware of every aspect of the retirement plan, and state in the decree and/or settlement agreement how it is being divided. Our divorce attorneys draft these types of Orders on a weekly basis for their clients, as well as for other attorneys.

Call if you have questions, whether you already have an attorney that needs more information, or you are just beginning the process. 401-841-5700 or http://www.counselfirst.com/

Divorce and your retirement accounts (found on fidelity.com)

BY Bill Bischoff, SmartMoney© 
2010 Dow Jones & Company. All Rights Reserved. SmartMoney® is a registered trademark of Dow Jones & Company, Inc. SmartMoney — 06/22/10


In addition to all the other stuff, getting divorced is a major financial transaction. As such, it can have serious tax implications, including some pitfalls you’ll want to avoid. This is especially true when it comes to splitting up tax-favored retirement accounts between you and your soon-to-be ex. You’ll need to plan ahead to make sure the tax results turn out OK for you. Here’s the story.

Use QDRO to divide up qualified retirement plan accounts. Say you have a qualified retirement plan at work (such as a profit-sharing or 401(k) plan) or a self-employed or small business retirement program (such as a “Keogh” pension plan). You’ll probably have to divide up your retirement account (or accounts) between you and your ex as part of the divorce property settlement. However, doing it carelessly can create a real tax fiasco for you.

To divide up qualified retirement plan accounts the tax-smart way, you need to establish a qualified domestic relations order, or QDRO. What’s a QDRO? It’s simply some boilerplate language that should be included in your divorce papers. First and foremost, the QDRO establishes your ex’s legal right to receive a designated percentage of your retirement account balance or designated benefit payments from your plan. The good news for you is that the QDRO also ensures that your ex, and not you, will be responsible for the related income taxes when he or she receives payouts from the plan.

The QDRO arrangement also permits your ex-spouse to withdraw his or her share of the retirement plan money and roll it over tax-free into an IRA (assuming the plan permits such a withdrawal). That way, your ex can take over management of the money while postponing income taxes until withdrawals are taken from the rollover IRA.

Bottom line: The QDRO is a fair deal for both you and your ex because it ensures that the person who gets retirement plan payouts will also owe the related income taxes. Who can argue with that?

Here’s the rub. If money from your qualified retirement plan gets into your ex-spouse’s hands without a QDRO being in place, you face a potentially disastrous tax outcome. You’ll be treated as if you received a taxable payout from the plan and then voluntarily turned the money over to your ex. So you’ll owe all the taxes while your ex gets the money tax-free. Ouch! To add insult to injury, you may also get stung with a 10% penalty tax if this happens before you turn age 59½.

So make sure your divorce papers include the necessary QDRO language. Helpfully enough, the government even provides sample language in IRS Notice 97-11 (it can be easily tracked down with an Internet search).

You would think this advice would be so well-known that I wouldn’t have to give it. You would be wrong. There have been tons of court cases where individuals turned over retirement plan money to their ex-spouses without bothering with QDROs. Those individuals all wound up getting socked with big tax bills. Not fair to them, but the tax rules are often unfair to folks who don’t know what they are doing.

Be careful with IRAs too. You don’t need a QDRO to divide up an IRA between you and your soon-to-be ex without dire tax consequences. You can simply arrange for a tax-free rollover of money from your IRA into an IRA set up in your ex’s name. Then your ex can manage the rollover IRA and defer taxes until he or she begins taking money out of the account. As with a QDRO, this procedure ensures that your ex, and not you, will owe the resulting income taxes. These rules apply equally to traditional IRAs, Roth IRAs, SEP accounts, and SIMPLE IRAs (they are all considered IRAs for this purpose).

You still need to be careful here. The nice tax-free rollover deal only applies when your divorce agreement requires the rollover. What happens if money from your IRA gets into your ex’s hands before or after the divorce without such a requirement? You’ll be treated as if you received the money, and you’ll be on the hook for the related taxes--even though you didn’t actually keep the money. Plus you’ll usually owe a 10% penalty tax if you’re under age 59½. To avoid this fate, you should never transfer IRA money to your ex in advance of a legal requirement in your divorce papers to do so.

The last word. You can divide up tax-favored retirement account money the tax-smart way or the tax-dumb way. Unfortunately, some otherwise-competent divorce attorneys know little or nothing about taxes. That doesn’t cut it. You need a legitimate tax pro who has handled lots of divorce-related tax issues on your side.

While your attorney might be able to fill that role, don’t take it for granted.