Anyone who is getting divorced faces a daunting array of financial decisions, but none is more important than how to divvy up the retirement assets. According to Consumer Reports' Money Adviser, in most states, retirement plans acquired during a marriage - including pensions, annuities, 401(k)s and IRAs - are considered marital property and will have to be included in the division of marital assets in the event of divorce.
Each plan has its own set of rules. Some might allow a distribution of an ex-spouse's portion at the time of divorce, for example, while others require waiting until the ex retires. So it's essential to collect all the relevant documents and consider seeking help from an attorney or knowledgeable financial adviser.
Here's an overview of what Consumer Reports' Money Adviser's experts say is important to know.
Who has what
Figuring out what retirement assets an individual owns should be easy, but finding the spouse's might require some digging. A good place to start is tax returns, which list contributions made to individual retirement accounts. Finding out about employer-sponsored accounts like 401(k)s and stock-option plans will probably require delving deeper. But someone who is getting divorced has a right to this information - even if the couple is taking a less adversarial route to divorce by using mediation instead of litigation.
According to Consumer Reports' Money Adviser, how retirement assets are handled in a divorce depends on the way a plan is categorized. "Qualified" plans are governed by the federal Employee Retirement Income Security Act, including 401(k)s, business and corporate pensions, profit-sharing plans and tax-sheltered annuities. Dividing them requires a document called a "qualified domestic relations order," or QDRO. It tells plan administrators what to do with each person's share of the account.
A house and a retirement fund could both be valued at the same amount by a court, but that legal value isn't the whole story. One possible scenario is that one person wants to keep the 401(k) and the spouse wants the equity in the house. When sold, the house will probably have little or no taxes owed (home sale profits of up to $250,000 for singles and $500,000 for married couples filing jointly are usually not taxable). But all the money in the 401(k), unless it's a Roth, will be taxed.
Any benefits that have been negotiated from a former spouse's retirement plan won't automatically continue after his or her death. So it's a good idea to make sure that the attorney specifically includes survivor's benefits in the QDRO, if the plan allows for them. One caveat: Many state and local government retirement plans make a distinction between a surviving spouse and a surviving ex-spouse.
Neglecting to remove an ex-spouse as a beneficiary on retirement plans, insurance policies and other documents can have ruinous financial consequences. Consumer Reports' Money Adviser says that it's critical to check deeds and documents, because people's memories are often faulty.
Upon receiving a distribution from a plan, it's important to be sure to understand how it was divided and to check that the amount is correct. All too often, someone in the chain of command - the plan administrator or the broker in charge of the plan - makes a mistake. Women should also be aware that the fact that they tend to live longer than men affects how payments are calculated from a defined-benefit pension plan. Women may receive less than the ex-spouse's payment, even if they were apportioned half of the retirement assets.