Getting Income From Retirement Plans After Divorce

QuestionGetting Income From Retirement Plans After DivorceAs a part of my divorce settlement, I am supposed to get a portion of my husband’s retirement plans. I’ll need some of the money to live on, but I’m only 53, so I’m too young to receive retirement benefits. What’s the best way to handle this retirement plan distribution?

AnswerGenerally, a Qualified Domestic Relations Order (QDRO, pronounced “quadro”) would be used to transfer your portion of your husband’s plan to an IRA in your name. Ordinarily, you can’t take money from your IRA without penalty until you are 59-1/2.

If you need money to live on now, you can elect to have the funds transferred from your husband’s plan directly to you, rather than transferring them to your IRA. You will have to pay tax on the money you receive, but there won’t be any 10% penalty if the money comes from a retirement plan other than an IRA.

If you don’t want to pay all those taxes up front (and who would?) you can choose to have the money sent directly to your IRA. Then you can annuitize the IRA, taking monthly distributions based on your remaining lifetime.

Although IRA distributions before age 59-1/2 are usually subject to a 10% penalty tax, an exception applies if you annuitize the IRA and continue receiving the payments until you are 59-1/2 (and for a minimum of five years).


  1. debbie didonato says:

    Need to have paper work drawn up to git qudo he paid for the divoice and I have no representation.


  2. verdell rosalez says:

    himy husband is a alcholic and verbally abusive we have been married 8 years he has a retirement plan am i eligibe to get anything

  3. If divorce papers were filed 5 years ago, is it necessary to get lawyer to get his retirement ? And if filed in one county and moved to other do I have to refile?

    • Those legal questions are dependent on the laws of your state, so you’ll need to ask your attorney for guidance. If the divorce was not finalized, in some states the case is dismissed 5 years from filing and you have to start over. To distribute a portion of an employee’s retirement plan to the ex-spouse, there need to be legal documents filed and served on the plan administrator.

  4. Patricia Cooper says:

    My aunt has been married for 28 years to her soon to be ex-husband. He is drawing his retirement and she is 52. Will she be able to receive her portion now to live on or do she have to wait? If I understand it correctly she can now and pay taxes on it. Also is it half of the retirement? His lawyer is saying a third. We are in KY.

    • She will receive a portion of the payment that is currently going to him, and she will not have to wait. I don’t know Kentucky rules, but in many states the spouse’s portion is 50% of the marital portion based on the time he was in the plan while married divided by the time he was in the plan in total. So if he was married for 2/3 of the time he participated in the plan, then she would be entitled to 1/3 of the benefit. This issue should be addressed in her divorce agreement.

  5. My husband and i have been divorced since 2006..In our divorce it states that i get half of his 401k from the time we were married up until when our divorce was final.. I have not received anything.. hes going to b quiting his job and moving out of state,how do i get my half before he draws out his plan and leaves state with All of it ???will I have get a lawyer to file the QRDO? Or is there a way I can file for that by myself??my lawyer is no longer in practice as a lawyer she is now a states attorney..Please help i Dont know what to do and Dont think its fare if i have to pay for another lawyer when in my divorce papers it Already says i am entitled to half..

    • Contact the company to let them know that your divorce decree says that you are entitled to half the 401(k) and ask them what additional paperwork they need. They probably have a proforma fill-in-the-blanks QDRO that you and your former spouse can file with them. Having it done professionally is always preferable, but if you can’t afford that, then see if you can do it yourself. But get it done ASAP before something happens — you are at risk until you do.

  6. My ex is retiring in Jan 2014 happy for him.. and happy for me too because I do get some of his retirement I donated to during out marriage.. thou together 20 yrs only actually married 9 1/2. At time of divorce in 2000 he was making 94,000 (now 125,000) he gets 80% of his income for retirement.. how will I figure this out? I worry he will low ball me and I wont know any better.. there was a lump sum done at the time of the divorce in 2000 by an estuary (spell check) for 56,000 but he only wanted t o give me 30,000.. at the time I was working and getting alimony and child support so I choose to wait until her retired.. I became disabled in 2010 and no longer working, I really need to get an accurate number so I wont get low balled.. is there an online calculator to give me some idea? thanks!! Renee

    • Your divorce decree will tell what you are to get. If you were awarded a percentage of his retirement and served a Qualified Domestic Relations Order on the plan administrator, your portion will be paid to you directly by the retirement plan. If not, and your ex has not yet retired, then you’ll need to get that QDRO in place right away. If your decree says simply that your ex will pay you a percentage of his retirement as he receives it, then you will need to request proof of how much that is, such as a copy of the check he receives or a pay stub.

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