If you have some serious marital illness that you think can never be cured and it keeps creating regular issues between you and your spouse, then you might opt for a drastic solution. You may file for a divorce and put an end to your relationship. This way might be both of you can live a happy peaceful life ahead.
But while getting a divorce, you should always check whether or not your spouse has a claim on any of your retirement benefits after divorce. This is an important issue and couples who are in long marriages or individuals who have limited working years should look into this matter.
Here we will elaborate on the retirement benefits for divorced spouse.
But first, we need a glance at the different retirement benefits.
Categories of retirement benefits for divorced spouse
Normally you can divide the benefits into 3 categories:
- Retirement savings plans
- Social Security benefits
- Military pensions (Commonwealth of Virginia)
Now, let’s put some light on the impact of divorce on your retirement benefits.
Why are retirement plans divided in a divorce?
Retirement benefits for divorced spouse should be considered as a part of the marital estate. So, at the time of filing the divorce, the benefits should also be equitably divided. The thing must be noted that “Equitable” does not mean “equal.” Each spouse should get a fair share after considering several factors.
Retirement benefits aren’t a separate property of your spouse. So, determining how to split retirement assets can be one of the most difficult aspects of divorce.
Dividing retirement benefits after divorce
When you and your spouse want to divide the assets in your retirement plans, such as IRAs and other qualified plans, you must apply a separate legal term to all types of division.
You should divide IRAs using the “transfer incident to divorce.”
On the other hand, 403(b) and other qualified plans, such as a 401(k) should be divided under the “Qualified Domestic Relations Order” (QDRO).
State laws may differ and may consider both of this division as one and labeled as QDROs. In both cases, you and your spouse should choose (as discussed) the category where each of your retirement assets would be considered. When you submit your information to the judge or mediator to verify, the categories should be added correctly in the divorce or separation agreement.
In a QDRO, both parties in a divorce can avoid tax liabilities and penalties if there is any withdrawal or capital gains associated with retirement funds distribution. These transfers, while the spouses are filing a divorce, are non-taxable events.
A Qualified Domestic Relations Order (pronounced “quad row”) or QDRO is a court order, judgment, or decree associated with the child support, alimony, or property rights. It will decide whether or not you are eligible to the retirement assets. Don’t be overconfident that your rights upon the retirement assets will be allowed by QDRO, like your divorce agreement.
QDROs only apply to plans which are IRS tax-qualified. It is also covered by the Employee Retirement Income Security Act (known as ERISA). These do not apply to military or government pensions. Spouses do require a QDRO to divide IRA or SEP assets.
The U.S. Department of Labor has promoted a helpful booklet about Qualified Domestic Relations Orders called The Division of Retirement Benefits Through Qualified Domestic Relations Orders.
Social security and divorce:
After the divorce, your ex-spouse might get Social Security benefits considering the income record of your ex-spouse. Of course, he or she has to meet certain requirements. Initially, both of you must get either Social Security retirement or disability benefits. That means your ex-spouse with an income record must be 62 years old and must reach full retirement age to get the benefits.
Your ex-spouse looking for the benefit, have to show that he or she has
- completed 10 years or longer in marriage,
- He or she is currently unmarried
- The proper income record to get the benefits. The limit of your income should be less than the amount of benefits he or she will receive.
Once a spouse remarries, they will no longer be eligible to collect on their divorced spouse’s social security benefits.
A pension earned during a marriage is generally considered to be a joint asset of both spouses. However, it is up to the state divorce courts to decide whether and how pension assets will be divided. Federal law allows state courts to treat disposable retired military pension as property divisible in divorce.
As per the rules and regulations of the Department of Defense (DOD), a portion of a military member’s retired pay will be given to the ex-spouse, if he or she meets the following guidelines:
- The former-spouse should have been married to the military member for a certain period, at least for 10 years.
- Direct payments aren’t allowed. The division of retired pay shouldn’t be more than 50% in any case.
- Disability pay will not be treated as property in a divorce. However, it will be considered as garnishment for alimony or child support.
- Alimony or child support can be paid straight in addition to the division of retired pay. DOD Finance won’t allow over 65% of your disposable retired pay for property division and alimony/child support.
If the criteria above are not met as per DOD, the retired member might get an order from the Court to pay off the military pension allotted to the ex-spouse.
Practically, retirement benefits for divorced spouse and their fair distribution among the spouses always make your divorce process complicated and increase the cost of legal fees. If required, you may hire a professional attorney who can understand your points while dealing your divorce case and guide you as per the law. Your attorney should give you proper suggestions to get things what is yours.