There are a number of important considerations when retirement plan assets are to be divided in a divorce settlement. These can include:
1) The Documents:
a) The Property Settlement Agreement: A marital estate consists of property. Customarily, that property will include, but not be limited to, a residence; a vehicle; house furnishings; jewelry; savings accounts; and 1 or more retirement plans. When the parties, with the help of their advisors, choose how the marital property will be shared, that agreement will be written into a Property Settlement Agreement (PSA).
b) The Domestic Relations Order: The benefits/accounts in retirement plans (401(k), profit-sharing, and pension plans) are held in Trust for the plan participant and his/her post death beneficiaries. However, one exception to that mandate is that a properly drafted Order (known as a Domestic Relations Order [DRO]), after it becomes a Qualified Domestic Relations Order (QDRO) when the terms of the Order are validated by the Plan Administrator and entered in the Court, will direct the Plan Administrator of how and when to divide the plan’s benefits/accounts between the parties per their agreement set forth in the PSA.
2) Timing of the Creation of the QDRO:
It is not unusual to find that the last piece of marital property to be covered is the apportioning of retirement plan assets. Therefore, the health of the participant spouse could become an issue in the division deliberations. Although there is case law that supports the creation of a QDRO after the death of a participant spouse, it might be wise to consider addressing the QDRO early on in the marital property division settlement.
3) Pre-Nuptial Agreements:
As explained in my paperback and e-book Dividing Retirement Plan Assets in a Divorce (available on Amazon), a pre-nuptial agreement, generally speaking, cannot waive a non-participant spouse’s rights with respect to survivor benefits/accounts. However, depending on State law, it may be used to waive all or part of lifetime payments of benefits/accounts.
4) Same Gender Marriages:
Note that the act of marriage between two men or two women may eventually be exposed to a divorce. This means that all of the deliberations needed to divide marital property in heterosexual marriages will be applicable to same gender marriages.
In order for divorce settlements to be completed, the above special concerns must be addressed and resolved – as equitably as possible – by both divorcing parties and their representatives.
Howard M. Phillips is a Member and past Director of The American Academy of Actuaries; a past president and Director of The American Society of Pension Professionals and Actuaries; and is enrolled to practice by a Joint Board of the Departments of Labor and Treasury. He is currently an independent consulting actuary. He is the author of DIVIDING RETIREMENT PLAN ASSETS IN A DIVORCE: A Concise, Comprehensive Pension Guide for People Getting Divorced.