- by Shana Webb Pennywell
- in Divorce
Going through a divorce means dividing assets that you and your former spouse may have spent a considerable number of years accumulating. In addition to real estate, cars, furnishings, and other types of personal property, this involves untangling your financial accounts as well.
You may not see a connection between your retirement accounts and divorce, particularly if these funds were earned specifically by one of the parties and deducted directly from a paycheck. It is important to realize that, as marital assets, they can be divided during a divorce, and included as a part of your property settlement.
Retirement Accounts and Divorce
During your divorce, assets and liabilities you and your spouse earned or acquired from the date of your marriage to the date of separation are subject to the rules of equitable distribution. This means that rather than dividing everything 50/50, the court will aim for a settlement that is fair to both parties, keeping in mind the following:
- Each party’s individual income, assets, and liabilities;
- The duration of the marriage;
- The age, physical or mental health of each spouse, and their future earning potential;
- Contributions or sacrifices made by one of the spouses to advance the education or career of the other;
- Acts on the part of both spouses in acquiring and maintaining the assets.
Under Georgia divorce laws, assets to be divided include vested or non-vested pension and retirement accounts, or any type of deferred compensation. As part of your divorce settlement agreement, these distributions are in addition to any alimony or child support awarded. Depending on the circumstances and the complexity of dividing the account, the judge in the matter may opt to substitute other assets or property to adjust for retirement funds, or include these funds as part of the overall alimony award.
It is extremely important for government and military employees and teachers to have an experienced advocate who understands exactly how the government and military retirement and pension systems operate and properly calculate martial vs. separate property interests.
Recently, in a contested divorce in Judge Jeffrey Hamby’s (juvenile court judge sitting in for a superior court judge) court in Cobb County, I secured 100% of the martial portion of a local teacher’s pension benefits through the Teacher Retirement System of Georgia wherein one party planned and saved for retirement and the other party was merely seeking “easy” money. In this case, understanding of the Teacher’s Retirement System and the applicable laws protecting it allowed my client to retain ultimately millions of dollars in future benefits from their pension.
Dividing Pension and Retirement Accounts
When dealing with pensions and divorce, if the judge in the matter does decide to divide a retirement account as part of the settlement, a Qualified Domestic Relations Order (QDRO) is generally required.
The U.S. Department of Labor advises that this is a judgment or decree which establishes or recognizes a spouse or dependent's right to receive all or a portion of another’s retirement benefits. To qualify as a QDRO under the Employee Retirement Income Security Act of 1974 (ERISA), the order must include the following:
- The name and address of each party;
- The name of the plan to which the order applies;
- The percentage or dollar amount the spouse of the retirement account holder is due to receive;
- The total number of payments or the length of time in which the order applies.
Reach Out to Us for Help Today
When you need help in complicated divorce matters that have the potential to impact your future financial security, contact Stearns-Montgomery & Proctor. We provide the aggressive legal representation needed to ensure your rights and interests are protected, and can advise you on the best course of action in your particular case.