Are You Entitled to Some of Your Husband’s Retirement Savings In Your Divorce?

Aside from your home, it is likely that the retirement accounts you and your husband hold make up a large portion of your shared assets. Divorce accounts, like 401(k) plans, IRAs, and pension funds come with a lot of rules and regulations, which makes them a little tricky to tackle in divorce. However, retirement accounts ARE assets and can be considered martial property. That means you are likely to be entitled to some of your husband’s retirement assets, especially if he was the primary breadwinner in your household.

Can You Receive Part of His Retirement Benefits?

Any income that your husband added to his retirement accounts while you were married or any amount that he became vested in a pension plan during marriage will be considered marital property. As long as the money invested did not come from an inheritance or as a gift or isn’t protected by a prenuptial agreement, it should be on the divorce negotiation table.

Before you sign your name on the divorce settlement make sure you understand exactly what the tax implications are for dividing retirement assets. Since retirement vehicles are so complicated, it is really a good idea to use an experienced divorce attorney to guide you in this process.

By the way, this rule cuts both ways. If you have built up retirement savings during the marriage, your soon-to-be-ex is likely entitled to part of your retirement savings.

Get a QDRO

If your husband has a pension or a 401(k) plan, you’ll want to ask the court to issue a Qualified Domestic Relations Order, known as a QDRO, which you can serve to your husband’s employer. The QDRO will allow your husband’s employer or retirement administrator to move funds from his account and place them in your retirement account without any penalties. We can’t stress enough how important this document is. Without it, your husband could end up with your share of the retirement instead of you.

Get a Lump Sum Payment Instead?

It is always possible for you to take a lump sum withdrawal from your husband’s retirement account if you both come to that agreement, but be aware of the tax penalties you’ll face. For example, if you ask your husband to hand over half his IRA to you in cash and you are under the age of 59 ½, that payment will get hit with a 10% withdrawal penalty. Additionally, he’ll have to report the total amount as income and pay income tax on it. If the amount is large enough, it might even get taxed in a higher tax bracket!

Think about how much money you need right now and where you are in your own retirement savings plan. If you can, use a QDRO to move your husband’s retirement savings into a new, separate IRA for yourself so you can focus on your own retirement savings. Of course, not every woman can afford to start saving money right away after a divorce. If you need the money to pay your legal bills or to start your life over, then you may have to simply swallow the taxes and penalties. Another option is to negotiate for cash from another source instead of your husband’s retirement accounts, such as from his stock options or RSUs, so that you can avoid an early withdrawal penalty.

Get Expert Help

Dealing with retirement accounts can quickly get messy, and many divorce attorneys mishandle QDROs. Military pensions, and pensions from the federal government, state government, county, or city all have their own rules and require their own expertise. Don’t try to negotiate these tricky subjects on your own and get burned with unknown taxes, penalties, and laws. Hire a knowledgeable divorce attorney or at least an attorney with contacts with specialists who can work with her on your divorce. It’s worth the extra money to make sure you get what you are owed in your divorce.

Have more divorce questions? You can always read more great advice in our divorce article archive, but we also recommend attending the next Second Saturday Divorce Workshop in your area.

Comments

  1. I was sick and unable to testify for myself on the day of my divorce , lawyer settled yhen later after I got out OF ICU .I FOUND MYSELF ON DISABILITY SSI GETTING 488 A MONTH LOST HEALTH BENEFITS NO SUPPORT AND CANT WORK HAD MY OWN HOME BUT ALLOWED HIM TO BORROW MONEY ON MY HOME HE EANYED HIS NAME OFF LOAN . I WAS IN COURT YESTERDAY AND GUESS WHAT I WASNT ALLOWED TO SPEAK ON MY OWN BEHALF , they gave me 10 days to list 3 realtors of their choice how about that .HE KEPT HIS HOME COMPLETE WITH POOL, has extra income because of me ., draws at least 7500 a month , gets off 80,000 dollar loan AND I GET 488 A MONTH THETE IS SOMETHING WRONG WITH THIS PICTURE . HOW CAN ANYONE GET AWAY WITH THIS AND A COURT ALLOW A DISABLED WOMAN TO BE THROWN IN THE STREET .CAN ANYONE HELP ME ?

  2. Hi
    I’m in need of advise. My parents are divorcing after 50 years of marriage, my father is canceling insurance policies; health, life, auto, this is freaking me out for my mother. He is closing accounts, he is leaving her with nothing. My mother has been completely submissive and un-involved in their finances, i’m so glad i found this page but i’m stared that she doesn’t have the resources to retain an attorney, he has handicapped her ability to defend herself.Does she have any rights to stop him from cutting her off financially?

  3. I’m currently receiving $700 a month SS age 64 , was married 19 yrs , he has a bigger amount a lot SS due him ,I remarried but same name Smith, can I get his benefits or do I get divorced so I can get 4 times more to live on or can I try to get benefits without getting divorced or annulled , I need the money and plan on filing my own return in 2017. My ex got all the benifits in our marriage,self employed he took all the SS so we didn’t have to pay the IRS extra for mine. That is why mine is so low, I deserve to get it just don’t know how.

    • It sounds as though you are currently married, and so the benefits you are receiving are either reduced benefits based on your own earnings record or spousal benefits equal to 50% of what your spouse is entitled to on his earnings record, reduced because you began collecting early. If you divorced, and your current marriage lasted 10 years or longer, you could collect reduced divorced spouse benefits based on either former spouse’s earnings record. Those benefits are the equivalent of 50% of what your former spouse is entitled to, reduced because you began collecting early. If your current marriage was less than 10 years, you could collect your own benefit or divorced spouse benefits based on Husband #1, whichever is higher.

      If he is entitled to maximum benefits of $2,600 or so, the reduced divorced spouse benefit would be around $975. It is likely that his benefits are not that high, so you wouldn’t get much, if anything, more than you are receiving now.

  4. well in my house things are very bitter ive been called a fool or a stupid hoe all sorts of names he even tells me that if i file for a divorce he is going to kill me because ill have 50% of everything he is owning. i am an unemployed 27 year old trying to complete my studies but due to the fact that he went out and had a child out of the marriage we suffer financially because he is paying for that child R2000.00 per month wich leaves our 4 year old with no money to even pay for school fees and no money to buy food in the house.because he is verbally and psyically abusive i fear for my life.we are married in community of property so that means if i file for a divorce all assets needs to be divided.please help. i am so drained even the intimacy is no more there.wich makes me feel like i am not good enough towards him please help

  5. carol wilber says:

    I was married for 10 yrs, divorced in the 80’s. Husband died in 2011, Am i entitled to any social security benefits from him?

  6. Sharon Goldsmith says:

    My husband and I have been separated but still close. in september of 2017 we will have been married 10 years I am 62 and he is 73. I know I am not entitled to his inheritance but he draws about $5000 a month social security and retirement. do I get any of those funds in a divorce…

    • You can collect reduced social security spousal benefits now, or wait until you are 66 and collect full spousal benefits, if those benefits exceed benefits based on your own earnings record. If you divorce, then the benefits you are eligible for are called divorced spouse benefits, but are equivalent in amount. As for his retirement benefits in divorce, that will depend on the laws of your state.

  7. What happens to stocks that are purchased (not through employer), just a public common stock he had a hunch to follow up on? How are those treated after divorce? Could he sell them and cash that out, and if so, are they then taxable income and fees?

  8. Oh another question. Do you know of low cost financial advisors with regards to advising the best way to move forward after a divorce? Like should I keep the house and forego some retirement, sell the home, etc?

  9. Attend a Second Saturday workshop near you to get the information you need to navigate your divorce. They are low-cost and packed with information. http://www.SecondSaturday.com / find a workshop near you.

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