Dividing marital property between spouses is typically one of the most complicated components of any divorce. Marital property, by the way, is most property obtained by either spouse during the marriage if they have no pre or postnuptial agreements. Conversely, separate property is most property owned by either spouse prior to the marriage. Please consult our previous blog for more information on property division in a Florida divorce.
A pension is, simply, a retirement asset that must be designated as either marital or separate property. It is not uncommon, however, for a particular pension plan to be a combination of marital and separate property. Another complicating factor is that pensions, like many other financial accounts, appreciate in value over time.
An important note is that spouses may be entitled to the other spouse’s pension even if only one spouse financially contributed to the plan. Generally, the portion of the pension that accrues after the wedding is considered marital property if the ownership is not governed by a pre or postnuptial agreement.
Qualified Domestic Relations Order
Simply putting the pension division in your divorce decree may not be enough. In most cases, the spouse receiving a portion of the other spouse’s pension must fill out a Qualified Domestic Relations Order, or QDRO. (IRAs and SEPs are two assets that are excepted from this requirement). This is a court order designating an alternate payee for certain retirement accounts. In this case, the alternate payee is the former spouse of the one with the pension.
Specialist QDRO attorneys are contracted if your divorce decree requires one. These attorneys generally work on a flat-fee basis and are competitive with the general market. The order must specify the amount of pension you or your spouse will receive and the timing of the rollover (e.g., 401K) or payments (pension). Depending on tax consequences, the receiving spouse might not want to start receiving payments until they reach full retirement age.
Pension As a Bargaining Chip
Working out a property division arrangement yourselves is almost always better than relying on a judge to decide things. When you come to an agreement outside of court, you have more control over your circumstances and future.
When you and your spouse negotiate over property division, you might agree to let one spouse have property that is roughly equal in value to the other spouse’s property. As a result, you might agree to let one person keep the pension in exchange for another, similarly valued asset(s). If the spouse owns a particularly substantial pension, however, he or she might not get much of anything else.
Conclusion
Pensions and other retirement accounts are some of the most difficult assets to divide in a Florida divorce. Plan Administrators generally help with providing the marital value of such assets. The timing of payouts and rollovers also needs to be considered before signing the decree.
Experienced and knowledgeable legal counsel can help make sure your interests are represented during your divorce or family law matter. Talk to our firm today over a confidential consultation. Call us at (954)-447-2580 to get started.
