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Retirement Planning and Divorce


If you are getting a divorce, it is important to consider retirement planning, even if retirement may be decades away. An experienced family law attorney will be able to advise a client on the division of retirement assets. Those assets can include pensions, a 401(k), a Roth IRA and any other retirement plan. An attorney can help determine which retirement accounts are marital assets and which are not. Marital assets may be subject to division between the parties while non-marital assets are generally not subject to division. Planning and consulting with an experienced family law attorney can leave a party better prepared for retirement after a divorce.

Marital Assets?

Property acquired during the marriage is generally considered marital property and is subject to equitable division. Property of one of the parties acquired prior to the marriage is considered non-marital and is not subject to division. Non-marital property also includes property inherited by one of the parties, property divided by a prenuptial agreement, property acquired after entry of a separation agreement, and property acquired in exchange for property acquired prior to the marriage.

If property that was originally considered non-marital is commingled in an account in both spouse names, it may become marital property and be subject to equitable division in a divorce.

Division of Individual Retirement Accounts

Individual retirement accounts, or IRAs, are purchased in the name of an individual but are generally considered marital property. Typically, the non-owning spouse will have their portion of the divided IRA rolled over into a new account in their own name. If one of the parties had an IRA prior to the marriage and no marital funds were contributed to the IRA, it may be considered non-marital.

Social Security Benefits

You may also be able to collect part of your ex-spouse’s Social Security benefits. You must meet several minimum requirements, including that you must be at least 62 years old, your Social Security benefits must be less than half of your ex-spouse, you must be currently unmarried, your ex-spouse must be able to collect Social Security benefits because of retirement or disability, and you must have been married for at least 10 years.

Pension Plans and 401(k)s

Pension plans and 401(k)s are generally considered marital property unless the plan was started prior to the marriage and no marital funds were used to further invest in the plan. Funds from 401(k)s and pension plans are not easily available for equitable distribution.  Instead, a Qualified Domestic Relations Order (QDRO) may be required.

The QDRO will state how payments from a 401(k) or pension plan will be distributed after it is eligible for disbursement. This allows the retirement account to remain intact, avoiding penalties and taxes, but will also determine how the non-named spouse will receive his or her share of the benefits when the parties reach the appropriate age.

Let the Attorneys at Sandra Bonfiglio, P.A. Help You

In every divorce, there are a multitude of issues. Let the experienced family law attorneys at the Fort Lauderdale office of Sandra Bonfiglio, P.A. assist you with your divorce needs.



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