Not too many people know that retirement accounts are usually the biggest
liquid assets in a
divorce. And because retirement plans are already tricky enough on their own,
distributing them between ex-spouses can be a major tax headache.
For example, when done incorrectly, moving one ex-spouse’s IRA to
the other ex-spouse’s IRA may lead to penalties of unintentional
distribution. And as mentioned earlier, different rules apply to different
plans like 401(k)’s and Defined Benefit plans.
Dividing an IRA plan should be approached as a transfer “incident
to divorce.” The law stipulates that transfers should be done within
a year after settling the divorce, with the IRS potentially reviewing
any transfers after this period. Recipients will then take responsibility
over the use and distribution of these assets.
Failure to classify transfers as “incident to divorce” will
result in both ex-spouses incurring an early withdrawal penalty. Moreover,
the sending and receiving IRA custodians, as well as the judge and state
courts, must approve of any instructions from an ex-spouse on the handling
of IRA transfers. Otherwise, any amount transferred to your ex-spouse
will be treated as regular income and taxed accordingly.
A qualified domestic relations order (QDRO) comes into play in any division
of qualified plans between two parties. The divorcing spouse, or the alternate
payee, usually receives the transfer of interest from the participant.
However, this setup also applies to children.
QDROs are tax-free, provided they are reported appropriately to the IRA
custodians and the courts. Like IRA transfers, labeling your transfer
as a QDRO will ensure it is protected from taxes and penalties.
Another challenge of transferring retirement assets between ex-spouses
is the need to add or change your beneficiaries.
With qualified plans, there’s not much you can do when it comes to
adjusting your beneficiaries. In a 401(k) on the other hand, an ex-spouse
needs to change their designated beneficiary, otherwise any assets will
go to the ex-spouse even if it states otherwise in a will.
IRAs, on the other hand, are not subjected to state laws. This means an
ex-spouse does not receive beneficiary rights automatically. Just make
sure you update the designated beneficiary in your IRA plan when your
ex-spouse gives up any claim to retirement assets.
If you are interested in filing for divorce in Denton County, TX,
schedule a consultation with one of our divorce lawyers CokerLegal today.