Retirement benefits represent an important category of property to be considered by a married couple undergoing a divorce, and how retirement benefits are treated by a court in a divorce action is governed by provisions of state and federal laws, most significantly the Employee Retirement Income Security Act (ERISA) and the Internal Revenue Code (IRC).

Treatment of Retirement Plan Property Rights in Divorce

In states following a community property or equitable distribution doctrine, retirement benefits under a qualified retirement plan are considered to be marital property based on the reasoning that the benefits resulted from the efforts of both spouses. In states where retirement benefits are generally not treated as marital property, courts can still take retirement benefits into account in determining alimony payments or property division.

Whether benefits are vested or unvested can also affect the development of the plan for the distribution of property in a divorce action, and the results can differ among the states.

The value of future of retirement benefits can also vary depending on how the court treats the impact of future taxes. Some courts have found that future taxes are too uncertain, and should not be a factor in the valuation of retirement benefits at the time of a divorce, and other courts have factored future taxes into the valuation process on the basis that the impact of future taxes reduces the present value of the benefits.

Qualified Domestic Relations Order (QDRO)

Court orders in a divorce action regarding retirement benefits will reflect provisions of ERISA and the IRC, which address the rights of a divorced spouse to benefits, and recognition of the court order by the retirement plan's administrator. These orders are called qualified domestic relations orders under 206(d)(3) of ERISA and Internal Revenue Code 401(a)(13).

Qualified domestic relations orders must contain certain information, as required under I.R.C. 414(p)(1)-(4), in order to be recognized by a plan administrator:

  1. The retirement plan participant's name and last known mailing address, and the name and address of the spouse or former spouse (also known as the alternate payee)
  2. The amount or percentage of the retirement benefits to be paid from the plan to the alternate payee, or the manner for determining the amount or percentage of the payment
  3. The period of time or the number of payments to which the qualified domestic relations order applies
  4. Designation of the plans to which the order applies

If payments are being made from a retirement plan under a qualified domestic relations order, a subsequent qualified domestic relations order cannot require the plan to make payments to someone else.

I.R.C. 414(p) sets out several requirements for the administrators of retirement plans, including notices that must be given regarding the acceptance and acknowledgment of qualified domestic relations orders by the administrator, and how plan payments are treated pending processing of the court's order by the administrator.

Structuring Qualified Domestic Relations Orders

  • Designation of a divorced spouse as a surviving spouse can be important in order to secure the right to an annuity for the surviving spouse in case the plan participant dies before reaching retirement age, as provided by the Retirement Equity Act.
  • A divorced spouse can be designated as a surviving spouse for benefits which accrue after a divorce, but the plan participant's remarriage could present a problem.
  • Early retirement supplements to benefits given by an employer can reduce the amount received by a divorced spouse.
  • If the plan participant should become disabled, this event could affect the benefits available to the divorced spouse.

Tagged as: Family Law, Divorce, retirement benefits, divorce lawyer