How Are Retirement and Investment Accounts Divided During Divorce?

Dividing assets during a divorce can be complex, particularly when it involves retirement and investment accounts. In California, understanding how assets acquired during a marriage are categorized and divided is essential. Here, we break down the process for handling retirement accounts during divorce and explain what a Qualified Domestic Relations Order (QDRO) entails.

Community Property and Retirement Accounts

In California, any monies earned or acquired during a marriage are considered community property. This means that assets like retirement accounts funded during the marriage are subject to division upon divorce. Examples of retirement accounts that may be included are IRAs, 401(k)s, defined benefit accounts, Thrift Savings Plans (TSPs) in the military, and military pensions. To the extent that contributions were made or value was added to these accounts during the marriage, those funds are categorized as community property and thus divided between both spouses.

For instance, if one spouse’s 401(k) grew substantially during the marriage, the increase in value and contributions made during that time frame would be split upon divorce. Assets acquired prior to the marriage or after the date of separation are considered separate property and remain with the original account holder.

How Retirement Accounts Are Divided: The Role of a QDRO

The division of retirement accounts is generally managed through a Qualified Domestic Relations Order (QDRO). A QDRO is a legal order issued by the court to divide qualified retirement accounts between the divorcing parties. This order is essential for retirement accounts, as it ensures that both parties receive their fair share without incurring taxes or penalties for early withdrawal.

To create a QDRO, a QDRO specialist is hired to handle the calculations accurately and draft the order for the court. In most cases, both parties share the cost of hiring this specialist, as it benefits both by ensuring the division is handled fairly and legally. Once the QDRO is completed and approved by the court, it is submitted to the retirement plan administrator, who processes the division according to the order. The QDRO process is meticulous and involves detailed calculations to ensure an equitable distribution of retirement assets.

Exceptions to the QDRO Requirement

While many retirement accounts require a QDRO for division, some accounts can be managed differently if both parties agree. For example, a simple IRA may be rolled over into another account without needing a QDRO as long as both spouses agree on the division formula for calculating the community property value. This can be a more straightforward and flexible option for dividing certain accounts, though it still requires a clear agreement on the division terms.

Fair Division of Retirement Assets 

California law aims to ensure a fair division of marital property during divorce. Anything contributed to retirement accounts prior to the marriage remains the sole and separate property of the original account holder, and funds contributed after the date of separation are also considered separate property. Only the funds or value added during the marriage are divided as community property. This distinction allows each spouse to retain their pre-marital and post-separation assets while sharing what was accumulated together.

By understanding how retirement accounts are divided and when a QDRO is needed, couples can navigate this part of the divorce process more smoothly. Working with an experienced family law attorney can provide further insight into specific retirement assets and ensure that all parties are treated fairly.

Have More Questions? Contact JWB Family Law for Help

We hope this answers key questions about dividing retirement and investment accounts during divorce. For further assistance or personalized advice, please contact us at (619) 234-6123 or visit our website at https://jwbfamilylaw.com. Our team is here to help you navigate the complexities of asset division with care and expertise.