Dividing Retirement Accounts

Wednesday, November 21, 2018

 Dividing Retirement Accounts

When a couple is married, and one or both is working and has retirement accounts they usually plan to jointly use these funds for their support during retirement. However, divorce will cause each to re-evaluate their future concerning the use and availability of their once shared retirement assets. Here are some considerations regarding dividing retirement accounts during divorce.

Florida Law

Florida is an equitable distribution state which means that the court is going to examine a divorcing couples' assets and liabilities and divide them as fairly as possible by looking at various factors. This process includes analyzing retirement accounts which were fully or partially funded during the marriage. In other words, Florida law allows distribution of marital assets during divorce which may consist of retirement account funds which were contributed to during the marriage by either partner.


If the retirement account is a tax-deferred qualified retirement plan such as a 401(k) or pension, it will be governed by a federal law called the Employee Retirement Income Security Act of 1974 (ERISA) ERISA. When a spouse is awarded a percentage of the other spouse’s qualified retirement benefit, his or her interest is usually apportioned through an instrument called a Qualified Domestic Relations Order or "QDRO." The QDRO will identify the account and the percentage or amount which is to be paid the former spouse.

Social Security

For couples married for 10 years or longer, a spouse may be eligible to receive benefits on their ex-spouse’s record provided they are 62, not married, and they would receive a lower payment under their own record. In most cases, at full retirement age, an ex-spouse will be qualified to receive half of their ex-partner’s benefit.

During divorce, it is possible that part of your retirement account will be awarded to your former spouse and vice versa. Going from a retirement plan which included both partner's resources to having far less than you expected can be financially devastating. For those who are still working, this change may mean that one or both individuals will have to delay their retirement. Retirees in this circumstance could find that they have to seriously downsize or supplement their income.

At the Draper Firm, we have knowledgeable and experienced family law attorneys who understand the issues which arise when dividing retirement assets. We have the experience and knowledge you need to protect your retirement interest and prepare for the future. Please contact us to schedule a free consultation. We invite you to learn more about our firm here. Contact us today to schedule a free consultation.

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