Decades of Knowledge & Experience Guiding You & Your Family to a Fresh Start REACH OUT TODAY

Your Right to Retirement Assets

Law Office of MariAnn Hathaway April 11, 2024

Elderly man hand showing a jar full of coinsRetirement assets represent a critical component of your financial security as you plan for a future beyond your working years. These assets, which can range from 401(k) plans and pensions to Individual Retirement Accounts (IRAs), play a role in making sure you have the necessary resources to support yourself in retirement. However, a challenge arises when couples facing divorce have to determine the rightful distribution of these assets.  

Divorce not only symbolizes the dissolution of a marital relationship but also necessitates the equitable division of marital property, including retirement assets. This scenario can be complex, as the laws governing the division of such assets vary by state and are influenced by factors such as the length of the marriage and the specifics of each partner's finances. Thus, it is important to understand your rights and the requirements involved with claiming retirement assets in a divorce. 

At the Law Office of MariAnn Hathaway, we aim to clarify your rights to retirement assets and offer essential steps to protect your financial future.  

Understanding Retirement Asset Division in Pennsylvania  

In Pennsylvania, the process of dividing retirement assets in a divorce is governed by the principle of equitable distribution. This does not necessarily mean an equal division, but rather a fair division of assets based on various factors. These factors include:  

  • The length of the marriage 

  • Each spouse's income and future earning potential 

  • Each spouse's contributions to the marriage, including non-financial contributions such as homemaking and raising children

In Pennsylvania, marital property constitutes the assets, earnings, and acquisitions that occurred during the marriage. This classification is maintained even if the assets are in the name of only one spouse. Retirement assets accrued during the marriage are also considered marital property and are subject to division.  

Conversely, retirement assets owned by a spouse before the marriage or acquired during the marriage via inheritance or as a gift are defined as separate property under Pennsylvania law. Typically, these assets remain the sole ownership of the individual unless they are commingled with marital property.  

Types of Retirement Assets 

Retirement assets come in various forms and under multiple labels. Understanding the various types of retirement assets you or your spouse might have is essential to protect your financial interests. These assets include: 

Defined Benefit and Defined-Contribution Plans   

Defined benefit plans, which are also known as pensions, provide a fixed payment amount to the retiree every month for life. The amount of this benefit is usually based on the number of years worked and the employee's salary. Pensions from both private-sector and government jobs fall under this category. 

In contrast, defined-contribution plans, such as 401(k) or 403(b) accounts, involve contributions from both the employer and employee and are directly linked to the employee's job. These plans do not promise a specific amount of benefits at retirement. Instead, the benefit is based on the contributions to the account and the performance of those assets over time. 

If these assets are acquired during the marriage without a prenuptial agreement, they could be deemed marital property and subsequently divided during the divorce proceedings. 

Traditional Retirement Accounts and Savings  

Many working Americans set up traditional retirement accounts and savings, including IRAs and individual investment portfolios. These accounts are opened by individuals to save for retirement in a tax-advantaged way. There are several types of IRAs, including Traditional IRAs, Roth IRAs, and SEP IRAs, each with its own rules regarding taxes and distributions. These assets are typically divided during the divorce process through a separation agreement or are deemed equitable by the courts.  

Each of these retirement assets presents unique challenges and considerations when it comes to division upon divorce. It is recommended to enlist the help of a seasoned attorney who understands the division of such assets and how they can impact your financial security post-divorce.  

The Role of the Qualified Domestic Relations Order 

The division of retirement assets often requires a court order known as a qualified domestic relations order (QDRO) for plans like 401(k)s, or a domestic relations order (DRO) for plans like pensions. 

A QDRO is a judicial order entered as part of a divorce or legal separation that changes ownership or assigns a right to receive a portion of the retirement plan benefits of one spouse to another spouse, former spouse, child, or other dependents. This legal tool is used for the equitable distribution of retirement assets to make sure that both parties receive their fair share of retirement benefits accrued during the marriage, providing a legal mechanism to divide and distribute plan benefits without violating plan rules or the Employee Retirement Income Security Act (ERISA). 

Understanding how and when to use a QDRO can be complex, and the process involves meticulous drafting to ensure compliance with both state laws and plan requirements.  

Preparing for Retirement Asset Division  

Preparing for the division of retirement assets during a divorce can seem daunting, but with careful planning and the right guidance, you can protect your financial interests and future. Here are several steps you can take to prepare effectively: 

  1. Gather Financial Documents: Start by collecting all relevant financial documents related to your retirement accounts, including account statements, plan documents, and any prenuptial agreements. This will give you a clear picture of what assets are on the table and their values. 

  1. Understand the Value of Your Assets: Ascertain not just the current balance of your retirement accounts, but also their potential future value. This might involve consulting with financial counsel who can provide forecasts based on various factors, including market trends and account performance. 

  1. Consult With a Qualified Attorney: Divorce law and the specifics of retirement asset division often require professional insight. A qualified attorney can not only guide you through the legal process but also advocate for your best interests in the equitable distribution of assets. 

  1. Consider the Tax Implications: The division of retirement assets can have significant tax implications. For example, cashing out certain retirement funds early could result in penalties and taxes. Consider these consequences when negotiating the division of assets.  

  1. Construct a Property Settlement Agreement: A property settlement agreement that is agreed upon between spouses allows for a more controlled and tailored approach to retirement asset distribution.  

  1. Fulfilling Distribution Matters: For retirement assets that require a QDRO, the plan must be approved and the administrator must divide the funds accordingly. Otherwise, the parties can carry out the division as agreed or determined by the court.  

By taking these steps, you can approach the division of retirement assets with greater confidence and clarity, ensuring that you are well-prepared to secure your financial future post-divorce.  

Your Legacy, Your Future  

Retirement assets are not just numbers on a statement; they represent your financial independence and security. Knowing how these assets will be divided under Pennsylvania law is important to understand your rights and the requirements involved with claiming retirement assets in a divorce. 

At the Law Office of MariAnn Hathaway, our attorney is ready to offer support, guidance, and representation for the division of retirement assets in divorce. Remember, your retirement is worth protecting, and we are here to help you secure your rightful portion. Contact us today to schedule a consultation and learn more about how we can support you.