What Happens to Your Personal Retirement Account During a Divorce?

Many people believe that when a couple gets divorced, the assets within a retirement account belong to the spouse whose name is on the account. This is a common misconception that stems from the idea that these are “individual” retirement accounts and therefore should remain with the individual who opened them.

In actuality, personal retirement accounts will usually be awarded to both spouses during a divorce, although this is not always the case. In addition, there are specific procedures that must be followed in order to properly divide retirement assets in a way that ensures that both spouses receive what they are entitled to without exposing them to tax penalties.

When are Both Spouses Entitled to the Assets in a Retirement Account?

In general, personal retirement accounts that were opened after a couple was married are considered marital property and therefore, the entire account is usually included in the division of assets. The only exception would be if you had a prenuptial or postnuptial agreement that explicitly states that the retirement account remains entirely with one spouse or the other.

When one or both spouses bring retirement accounts into a marriage, things can get a lot more complicated. In such cases, whatever assets were in the account prior to the marriage are usually considered nonmarital property, and any assets that were added and/or accumulated during the marriage are considered marital property.

For example, let’s say you opened a 401(k) account with your employer while you were single, and it was worth $50,000 at the time you were married. After several years of marriage, the value of the account grew to $250,000. In this scenario, unless there are agreements to the contrary, both spouses would be entitled to only the $200,000 that was accumulated during the marriage, and $50,000 would remain with the spouse who opened the account.

Defined contribution plans like 401(k)s and IRAs are relatively easy to calculate in these situations, but this may not be the case with defined benefit plans such as pensions. Defined benefit plans are based on complex calculations that make it more difficult to value and divide during a divorce. In addition, government and military pensions (of which there are many here in South Carolina) are different from private pension plans, and they have special rules with regards to how long a couple has to be married before a spouse is entitled to a portion of the plan.

How are Retirement Plans Divided in South Carolina?

As we touched on earlier, you will need to follow specific rules and procedures in order to ensure that any personal retirement plans are divided properly. If you are younger than 59 ½ and dealing with an individual retirement account (IRA), you would need to roll half of the money in the account (or whatever amount that is agreed upon) over to your spouse’s IRA in order to avoid a 10% IRS withdrawal penalty. If you simply withdraw the money and write a check to your spouse, the withdrawal penalty would be triggered.

If you are dealing with a 401(k), pension, or any other employer-sponsored plan, you will most likely need a qualified domestic relations order (QDRO). A QDRO is a court order that must be drafted using precise language that is approved by both the court and the retirement plan administrator. This document protects the rights of the spouse who does not own the retirement account by ensuring that the terms and conditions of the divorce decree (with regards to retirement accounts) are carried out. It is important to note that QDROs are not applicable to military and government pensions as they are governed by other rules.

Another thing to keep in mind when dealing with the question of dividing a personal retirement account during a divorce is that there may be better solutions for handling this. South Carolina is a fair and equitable distribution state, and this means that assets do not necessarily have to be divided exactly 50/50, the division of property must only be seen as “fair and equitable” by the court.

So, when it comes to a retirement account, it might be beneficial for both spouses if they to do some kind of trade-off in order to avoid having to divide the account in the first place. Using the example from earlier, if the couple has a marital home with $225,000 in equity (along with $200,000 worth of marital assets within the retirement account), it might make sense to let one spouse keep the home and the other spouse keep the retirement account along with a used vehicle or another asset that has some value.

In situations like these, it is very important to work with an attorney who has an in-depth understanding of all of these potential issues and the ability to develop creative solutions designed to fully address your specific circumstances. By having skilled legal counsel in your corner, you will be in the best possible position to secure an outcome that protects your interests and makes the most sense for all parties involved.

Contact Our Knowledgeable and Compassionate Spartanburg, SC Lawyers for Assistance

If you are facing a divorce in South Carolina, The Nowell Law Firm is here to help. Message us online or call our office today at (864) 469-2481 to schedule a personalized consultation with a member of our legal team. We look forward to serving you!

How to Find a Divorce Lawyer You can Trust

Divorce is a difficult and highly emotional process. And throughout the proceeding, you will need to rely heavily on your attorney to provide skilled legal guidance and moral support. Your attorney will advise you, speak for you, and negotiate on your behalf. You will also need to be able to confide in your attorney and share with them details about your life that perhaps no one else knows.

Because they play such a major part in the outcome of your divorce, a good divorce lawyer can mean the difference between feeling like you are all alone and feeling like you have a strong advocate who is looking out for you. Your lawyer will take on many different roles as your case progresses, and they not only need to be well-versed in the law, but they also need to be personable, approachable, and able to explain things to you clearly and without condescension.

Unfortunately, finding a divorce lawyer you can trust is not as simple as picking one of the top three results from a Google search. Just because a lawyer comes up at the top of a Google search, this does not mean they are the right lawyer for you. There are numerous factors that determine who shows up at the top of Google, and quality representation is not always the most important determinant.

This is not to say you should totally discount search results. Look through them, and read through the reviews, but understand that search results can be manipulated, and reviews are not always legitimate either. To find a trustworthy attorney, you will need to go much deeper than that.

Tips for Finding the Right Divorce Lawyer

Here are some of the most important steps you should take to help find a divorce attorney you can trust:

Know What You Want

Common sense dictates that if you want to accomplish a desired result, you have to first know what that result is. There are a lot of different ways to approach a divorce, and the way yours will play out will depend heavily on your specific circumstances. For example, how is your current relationship with your spouse? There is no doubt that it is strained at least to some degree, otherwise, you probably would not be getting divorced. But that aside, how are you getting along with them since you decided to part ways?

These types of questions are important, because if you are on fairly amicable terms with your spouse, there is a good chance that the major terms and conditions of your divorce can be settled without a costly and protracted court battle. If, on the other hand, you are not getting along at all or you are dealing with a situation like abuse, you might need to prepare for a messy divorce. In either case, you should decide ahead of time what you want out of your lawyer.

Are you looking for someone who will be emotionally supportive? Or is it more important to have an attorney who is less personable and more focused on taking care of business? Is there a criminal issue that needs to be dealt with? If so, do you prefer a lawyer who also has experience with criminal law? These and similar questions should be answered before you start searching for a divorce attorney.

Ask for Referrals from Those you Trust

With a divorce rate that has been hovering around 50% for the past several decades, there is a good chance that someone you know has been through this process fairly recently. Ask them how they handled their divorce. Find out what mistakes they made and what they would do differently. In addition, ask them who they used for their attorney. You will want to drill a little deeper and find out more about their attorney as well. Ask about strengths and weaknesses, what they liked about them, disliked, etc. This will give you a good idea of whether or not their divorce attorney might be a good fit for you.

Meet with More than One Perspective Attorney

Although it is more time-consuming this way, it is worthwhile to meet with more than one divorce lawyer before deciding who to go with. These lawyers might be referrals from family and friends, those you found through internet searches, or names of lawyers you obtained from the local family court. Meeting with multiple lawyers will give you a better frame of reference and help you see how each one will approach your case. You will most likely encounter a wide variety of personalities and responses to your questions; and if nothing else, you will come out of these meetings with a good education about how the process works and what you can expect.

Ask the Right Questions

Use your time wisely by asking questions that bring you closer to your outcome of finding the right divorce lawyer for your case. Before you meet with an attorney, you should already have determined that they have adequate experience, a strong knowledge of divorce and family law, and a good track record. Therefore, the questions should be focused more on your unique circumstances, and how they will be able to help you achieve your desired result.

It is also important to note that win/loss questions are not all that meaningful in a divorce case. You are not necessarily looking to “win” the case per se. More accurately, you are looking to ensure that your legal rights and interests are fully protected, and that your lawyer is able to secure an outcome that is reasonable and in keeping with your best interests. And hopefully, it can be a win/win result for everyone involved.

Beware of Unrealistic Promises

Picking up on the last point, be very wary of lawyers who make lofty promises, such as that they will make sure you “get everything” or that your spouse “will not get a penny”. A combative approach like this is likely to only make things worse in the long run. An aggressive approach could create an expensive court battle that may not have been necessary, and it could also be very damaging to important family relationships, such as the relationships between each parent and the children (if there are kids involved). The bottom line is that the divorce process should be used to resolve the current disagreements between you and your spouse, and it should not be used to open up new battle fronts.

Trust your Instincts

At the end of the day, you are the one who will need to decide whether or not the attorney you are considering is right for you. This usually comes down to intangibles such as how confident you feel about how they will approach your case, and how comfortable you feel about working with them. After you have done your due diligence, pray about it (if you are a praying person), trust your gut, and decide accordingly.