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Family Law

Division of Retirement Assets
  • QDROS: This is an acronym for Qualified Domestic Relations Order, which is a special type of order which is often required to be entered by a Court in order to divide up retirement benefits in the event of a divorce.  A QDRO can often be used to divide a 401k, a pension, or other similar retirement benefits which were awarded to or provided to one spouse during the marriage, so that the non-owner spouse can received his/her marital share of the asset.  If the benefit is a 401k type benefit, then the non-owner spouse’s share can often be rolled over into an IRA.  If the benefit is a payment that will be made to the owner spouse at the time of retirement, a QDRO may be entered requiring the plan administrator of the retirement benefit to pay to the non-owner spouse his/her share each month at the time the owner spouse receives his/her share.
  • Thrift Savings Plan:  Many military service-members, as well as other federal employees, are able to save funds in a Thrift Savings Plan account.  If such an account exists, it is separate from the military retirement benefits that may have accrued during the marriage.  It is more like a traditional savings account, and the Court may distribute any portion of it that was saved during the marriage, via the entry of a special order called a Retirement Benefits Court Order.
  • Federal Employee Retirement System or Civil Service Retirement System: If a spouse has accrued benefits under either of these systems during the marriage, then the benefits so accrued are subject to division by the Court, and the non-owner spouse may receive his/her share of the marital portion of these benefits via the entry of a special order called a Court Order Acceptable for Processing (“COAP”).
  • Individual Retirement Accounts: If a spouse has contributed to an IRA during the marriage, then the amounts contributed during the marriage, are considered marital assets and may be divided by the Court.  Sometimes the financial institution where the IRA is held does not require any special order, other than a specific award in the divorce judgment, in order to divide the account, but some financial institutions require that a QDRO (Qualified Domestic Relations Order) be entered by the Court.  The amount awarded to the non-owner spouse can usually be rolled over into an IRA in the non-owner spouse’s name.
  • Railroad Retirement: If a spouse is receiving or is eligible to receive in the future, retirement benefits under the Railroad Retirement Act of 1974 (45 U.S.C. §231 et seq.), then there are special rules which apply to this type of benefit.  The railroad retirement benefits are divided into three segments: Tier I, Tier II and Supplemental Annuity.  Additionally, a former spouse of a railroad employee may also be entitled to his/her own divorce spouse benefits.
    • Tier I Benefits: Under the Railroad Retirement Act, Tier I benefits may not be considered by a Court in a divorce as a marital asset, and Tier I benefits are not divisible by the Court in any manner, either directly, or indirectly.  Rather, Tier I benefits must be set aside to the railroad employee spouse as his/her non-marital asset.
    • Tier II and Supplemental Annuity Benefits: These benefits are properly considered by a Court to be marital assets, if the benefits, or a portion of them, arose during the marriage, in which case they are subject to division by the Court in the divorce.
    • Divorced Spouse Annuity:  At such time as a former spouse of a railroad employee meets the age and other eligibility requirements under the Railroad Retirement Act, the former spouse may be entitled to apply for and receive his/her own divorced spouse annuity based on his/her former spouse’s Tier I benefits.  A former spouse’s benefits in this regard will not diminish the railroad retiree’s benefits, and such a benefit should be set aside to the non-railroad employee spouse as his/her separate, non-marital asset.
  • Contact us now for consultation to see how we can help with the division of retirement assets.
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