When parties file for divorce, division of assets is often a primary concern. One party may be hoping to remain in the marital home to raise the children, while the other may be anxious to sell the home to pay down debts or finance the divorce. Many people fail to realize that retirement plans are property, just like a house or car. As such, they are subject to equitable distribution. They can also be used as a bargaining chip so that the party arguing to remain in the marital home can do so, but possibly at the expense of forfeiting the retirement plan.
Pension Plans and the QDRO
A QDRO is a Qualified Domestic Relations Order. This order is separate and apart from the Judgment of Divorce. The QDRO provides for equitable distribution of a pension plan upon the dissolution of the marriage. In order for a QDRO to be acceptable, it must clearly state the name of the participant and the name of the former spouse who will be receiving a portion of the pension benefits. The person sharing in the benefit is often the former spouse but may be the child or dependents of the participant. The QDRO must also specify which plan it applies to (or multiple plans, if applicable). Finally, the order will also specify the amount or percentage of the benefit to be paid.
A QDRO terminates when either the retiree or former spouse dies. If the former spouse dies first, the withholdings revert back to the retiree. If the retiree dies first, then it is possible for the surviving spouse to receive the benefits if the system allows the member to name a surviving beneficiary.
A QDRO is only implemented when the member retires and elects to receive his or her monthly benefit, or when the member terminates participation in the retirement system and applies for a withdrawal of his or her net contributions.
Distribution of Retirement Benefits
Retirement plans can be distributed in several different ways. As described above, they can be used as a bargaining chip with the member keeping all the retirement benefits while the former spouse receives other marital property of equivalent value. A member may also pay a lump sum to the former spouse at the time of the divorce. In some cases, both spouses may have retirement plans, and division is unnecessary if the benefits to be received are relatively similar in value.
The Family Law Attorneys of Villani & DeLuca
If you are considering a divorce and are concerned about the financial ramifications of this decision, the experienced attorneys of Villani & DeLuca are here to help. We will review the retirement benefits at issue, so that you are informed as to whether the benefits can be divided now or later, entitling you to either a lump sum or stream of income. Contact our offices today at (732) 965 – 3404 to arrange for your free consultation.