- by Ryan Proctor
- in Divorce
When going through a divorce in Georgia, you will need to deal with issues concerning the division of marital property and assets. This includes real estate and personal property, such as homes, cars, and furnishings, as well as financial accounts, including savings, pensions, and 401(k) retirement accounts.
Many pension or other retirement benefits can be divided equitably, though not always evenly, between the parties. As part of this division, a qualified domestic relations order (QDRO) may be required. This is an order or judgment that directs the retirement plan administrator on how these assets should be distributed. Most retirement benefits are tax-deferred, so moving the funds may trigger early withdrawal penalties and a tax liability. The use of a QDRO allows for a clean transfer between spouses with no penalties or taxes.
Under Georgia Domestic Relations laws governing divorce cases filed in the Family Division of the Superior Court of Fulton County, each party is required to submit financial disclosures. You are required to list all property and assets acquired during the marriage and the current value of these items pending divorce.
Military Members May Delay Response Time
Under the Servicemembers Civil Relief Act, active military members may have the right to delay, or even stay, court proceedings. If you file a petition for divorce and your husband or wife is deployed on active duty, he or she has the right to receive a delay, or stay, to respond to the divorce paperwork. This federal law gives you up to 90 days. The judge then has the option on whether to grant a longer stay based on individual circumstances.
As property, assets, or income earned or acquired by either party during the marriage are subject to equitable division, each spouse has a potential share in any future benefits the other spouse may have earned during this time. Factors that go into making decisions concerning equitable division include:
- The length of the marriage;
- Each spouse’s income and earning potential;
- Contributions each spouse made in acquiring property and assets during the marriage;
- Education or career sacrifices made by either of the spouses in support of the partner’s career or to provide for children of the marriage.
Based on the above factors, a marital settlement agreement dividing property and assets may be negotiated, or a judge may issue an order in your case, which might result in a division of retirement benefits. In some circumstances, the judge may award additional amounts to one of the parties, to avoid having to divide retirement benefits. This may be in the form of granting a significantly greater share of marital property, or through an order awarding alimony.
Filing a QDRO after Divorce
Not all retirement benefits are subject to a QDRO. This only applies to those that are covered by the Employee Retirement Income Security Act (ERISA) and qualify under IRS guidelines.
In the event a QDRO is called for to divide a qualified retirement benefit, it is usually drafted by one of the attorneys in the matter after the divorce has been finalized. The spouse receiving retirement benefits as the result of a divorce may elect to have funds rolled over to an existing or newly created 401K or other retirement plan, which can help avoid any negative tax consequences or penalties for either party.
Questions? Contact Our Atlanta Divorce Attorney Today
For questions about your rights to pension plan benefits and other assets in a divorce, call or contact Stearns-Montgomery & Proctor online today. We can arrange a one-on-one consultation with our experienced divorce attorneys, at one of our five offices located strategically throughout Atlanta and the surrounding area.