Retirement Accounts and Divorce

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In New York, all retirement plans are subject to equitable distribution during divorce. This means that whether you have a pension, IRA, 401k, or any other plan, you will likely have to split the income with your ex-spouse. Clearly, if you want to try to preserve the plan for retirement, you will need the help of a divorce lawyer.

There are various types of plans, one of which is a savings plan. This includes IRAs and 401ks since you can get money out of them before you retire. Of course, you will likely have to pay fees, such as high taxes, to do this, but it is possible to access the money when you need it.

The other type of plan is a defined benefit plan. For example, a pension plan is placed in this category since you will have a harder time accessing the money before retirement. You may have to meet some conditions before you are given access, and if you do not do so, you may lose the plan altogether. If you are confused about which type of retirement plan you have, and how it will be handled, you should contact a New York divorce lawyer who has dealt with cases involving such accounts.


You should first remember that equitable distribution does not mean that each person gets 50% of each asset, though sometimes it works out this way. In fact, you do not even have to split up your retirement accounts if it does not seem beneficial to either of you. For instance, when you have to pay a large fee for accessing the money ahead of retirement, it does not always make sense to cash out now and split the money.

Instead, you should consider bargaining using the retirement accounts. For example, if you want your IRA in full and do not want to cash it out now and split it, you might tell your former spouse that he or she can keep your car, or lay claim to more of the marital home. As long as the amounts are about equal, it often makes sense to compromise in this way.


If you do decide to split the cash in the accounts now, do not attempt to do the math on your own. In New York, a special formula is used, and as you may know by now, the results will not always be 50/50. In addition, a judge will have to sign a qualified domestic relations order, or QDRO, which has a number of rules that need to be exactly followed. If you want to make sure you complete the process correctly, you will need the help of a divorce attorney.

Of course, you also have the option of dividing the accounts in the future instead of now. In this case, you may decide to avoid dividing this asset until you or your former spouse receives the cash. No matter which option you choose, you should keep in mind not only the cash value, but also any taxes and fees you are charged.

These need to be fairly divided among each couple, and we at Brian D. Perskin & Associates P.C. can make sure this occurs. Contact us today for assistance with your financial details, including the division of retirement accounts.

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