Will My Retirement Assets Be Divided in a Divorce?
Are you considering a divorce in Florida and wondering about how certain assets will be handled in your divorce? In particular, do you have concerns about how the court will handle your retirement assets, and whether they will need to be divided between you and your spouse? Generally speaking, retirement assets that were earned during the marriage are likely to be classified as marital property and subject to Florida’s equitable distribution law. Depending on the type of retirement assets and whether or not you are already retired, these assets are likely to be distributed through a particular type of document known as a qualified domestic relations order (QDRO).
Our divorce attorney in Tampa can provide you with more information below, and we can speak with you today about any questions you have concerning divorce in Florida.
Classifying Retirement Assets as Separate (Nonmarital) Versus Marital Property
Under Section 61.075 of the Florida Statutes, assets acquired prior to the date of marriage are classified as separate or nonmarital property and are not divided in a divorce, while assets acquired after the date of marriage are classified as marital property and are divided in a divorce. This is true unless there is an existing premarital agreement that specifies retirement assets (or other assets that would otherwise be classified as marital property) will remain the sole property of one of the spouses, and as long as the premarital agreement is enforceable.
In general, retirement assets classified as marital property will be divided along with other marital property — assets and debts — according to Florida’s understanding of equitable distribution. In Florida, equitable distribution means that the court begins with a presumption that all marital property will be divided equally between the spouses unless there is a justification for an unequal distribution.
Using a QDRO to Distribute Retirement Assets Classified as Marital Property
Most retirement assets will need to be distributed through a QDRO. A QDRO is almost always essential for spouses who are not yet retired because it allows for retirement benefits in one spouse’s account to be transferred to another spouse’s account without incurring the 10 percent early withdrawal penalty. It also allows the transfer of assets without taxing them.
Even for spouses who are at retirement age (and thus who will not incur the 10 percent penalty), there are some types of pensions and other retirement assets that can only be transferred through a QDRO. You will need to discuss the specific types of retirement assets owned by you and your spouse with your divorce attorney to determine whether you will need a QDRO.
Contact a Tampa Divorce Attorney Today to Find Out More About the Division of Retirement Assets and the Use of QDROs in Florida Divorces
If you or your spouse own any retirement assets that were earned during the marriage, those assets are likely to be classified as marital property and subject to distribution in your divorce. You may need a QDRO to divide the assets without incurring a penalty and tax at the present moment. To find out more about classifying retirement assets and how they are divided in a Florida divorce, you should get in touch with an experienced Tampa divorce lawyer at The Law Office of Laura A. Olson, P.A. for assistance. Contact our firm today to learn more about how we can assist you.
Sources:
leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&URL=0000-0099/0061/Sections/0061.075.html
frs.fl.gov/forms/online_instructions.pdf
