During divorce proceedings, emotions run high, but decisions regarding property and assets will affect both partners for the rest of their lives. One item that may slip by, especially for younger couples, is the question of retirement accounts and pensions. Each spouse has contributed to the other’s ability to accumulate these funds. Division of these assets is typically made in a separate agreement and may involve return trips to court.
Requests for changes to IRAs, Roths, 401(k)s, pensions and other contribution funds may be filed in court after the divorce decree -- with its property agreement -- is final. Their inclusion in a property settlement may not be binding because fund managers must approve any proposed distribution of funds that differs from the original agreement. A document containing proposed changes to the disbursement of the funds, called a qualified domestic relations order, or QDRO, is drawn by an attorney on behalf of the now ex-spouse, and submitted to the fund manager for approval.
You cannot go back to court to petition for a share of your spouse’s Social Security, the government pension plan funded by employees and their employers. The Social Security Administration administers all benefits, including those for divorced spouses. This disbursement is not part of a property settlement or QRDO. You can apply for your ex-spouse’s Social Security at retirement age if you’ve been married 10 years or more. You’ll be entitled to either your ex-spouse’s or your own benefit, whichever is greater, but you may not claim your ex-spouse’s benefits if you’re remarried at retirement age.
Waivers of claims on retirement accounts in divorce property settlements may close your option to return to court later. Only child custody, visitation and support agreements are permitted to be re-opened in many states; courts will not consider property and debt petitions. People typically try to settle retirement fund claims during or immediately following the decree.
If you must go back to court, follow your attorney’s advice on your state’s statutory limitations on type and timing of post-judgment petitions you may file. A full accounting of retirement accounts at the time of the property settlement can help provide information for filing QDROs with or after the divorce decree, as required in your state. Many people choose to use QDRO forms provided by the fund rather than a standardized form because it is familiar to the fund manager, which may result in faster handling.
- IRS: Divorced or Separated Individuals
- Social Security Administration: Qualifying for Divorced Spouse Benefits
- Lawyers.com: Divorce: Pension FAQs
- U.S. Department of Labor: About Qualified Domestic Relations Orders
- QDRO Desk: Obtaining a QDRO
- Legal Services of New Jersey: Issues After Final Judgment
- Indiana Legal Services: General Information About Divorce
- Jeffrey Hamilton/Digital Vision/Getty Images
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