Divorce and Retirement:
How to Take Control of
Retirement Benefits
WISER
®
• Women’s Institute for a Secure Retirement
THE WOMEN’S INSTITUTE FOR A SECURE RETIREMENT
WISER
®
WISER’s mission is to improve the long-term financial
security of all women through education and advocacy.
WISER supports women’s opportunities to secure
adequate retirement income through research,
workshops, and partnerships.
Acknowledgements
This report was written by Anne E. Moss, a Washington, D.C.
attorney whose practice concentrates on dividing retirement
benefits in divorce. Thanks also to Suzanne Scruggs, Cheryl
Gannon, Lara Hinz, and Maggie Boys.
w
The funding for this project was provided by a grant from the
Administration on Aging, U.S. Department of Health and Human
Services as part of the National Education and Resource Center on
Women and Retirement Planning.
© Women’s Institute for a Secure Retirement (WISER
®
) 2020.
tAble of contents
Introduction 1
Importance of Retirement Benefits 2
Retirement Benefits as Marital Property 2
How to Get Information 3
Negotiate an Agreement or Let the Court Decide 4
Options for Dividing Retirement Benefits 4
The House or the Retirement Funds 5
Get a “Qualified Domestic Relations Order” (QDRO) 5
How to Minimize QDRO Costs 6
Other QDRO Issues 7
Your QDRO Checklist 9
Conclusion 10
Appendix 1: Ten Ways to Avoid Losing the Pension
During a Divorce 11
Appendix 2: Additional WISER Resources
on Retirement Plans and Divorce 12
Appendix 3: Administration on Community Living (ACL)
Pension Counseling Projects 13
Divorce and Retirement: How to Take Control of Retirement Benefits
1
IntroductIon
When you’re in the midst of a divorce, you have to juggle so
many things. The emotional toll is hard enough to manage along
with the practical issues — and there are many. You may still have
young children living at home. And if so, you have to figure out
child support. And think through alimony if that is even an option.
And the house. And closing joint accounts and opening up new
accounts — even for utilities. Applying for new credit. Oh, and then
there’s coming up with ways to make it on your own financially.
One practical issue that women often fail to make a priority is
getting a fair share of retirement assets. Retirement funds may be
among the biggest assets you have as a couple. It’s important to
know that these funds are not automatically split in a divorce.
Read on to learn how you can protect yourself against losing the
retirement assets you’re entitled to receive. Don’t gloss over this
issue — it could mean the difference between comfort and
teetering on the edge once you reach retirement age.
“My divorce lawyer advised me to
ask for the pension benefit with
the warning that I would hate
myself 20 years from now if I
didn’t try for it. I am so grateful.”
Marty Miller
the ImportAnce of retIrement
benefIts
Retirement benefits are not automatically split during a divorce.
Just like other marital assets, a divorce court judge or an
agreement made between you and your spouse divides the
benefits. Learn as much as you can about the benefits you and
your spouse earned during the marriage. Then make sure you and
your lawyer take steps to protect your right to those benefits.
Even if you and your spouse have agreed to divorce through a
mediation process, consider hiring a lawyer to advise you along the
way. It is an extra expense, but it will cost a lot more if you make
uninformed decisions.
Retirement benefits come from a variety of employer-provided
plans — pension plans, 401(k) plans, deferred compensation
plans, and 403(b) plans, among others.
1
Note that your spouse
may have 401(k) assets sitting in an Individual Retirement
Account (IRA), if there was a job change during the marriage. Make
sure you consider all former employers, because any type of
employer can sponsor retirement benefits. Also, check joint tax
returns for required information that may help.
Retirement Benefits as Marital Property
The divorce law in just about every state considers retirement
benefits earned by either spouse during the marriage as “marital
property” (or “community property” if you live in a community
property state). But there are some differences among the states,
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1 This booklet does not discuss Social Security benefits. But be aware — you do not
have to trade your right to spousal Social Security benefits for another marital asset.
For more information about Social Security benefits and divorce, see WISER’s fact
sheet: Social Security and Divorce: What You Need to Know at wiserwomen.org.
Divorce and Retirement: How to Take Control of Retirement Benefits
3
especially when it comes to identifying what retirement benefits are
“marital property.”
You need to ask two key questions:
1. What benefits are divisible? Depending on state law, all
retirement benefits earned during the marriage may be divisible.
These include “traditional”pension plans — defined benefit plans
and defined contribution plans, such as 401(k) and 403(b) account
plans. States differ in what types of benefits they consider marital
property. For example, Maryland considers disability retirement
benefits as divisible marital property. California considers them as
separate property that belongs to the disabled person.
2. When does marital property stop accumulating? Some states
consider the date of divorce as the time when marital property
stops accumulating. Other states may divide property earned only
up to the date of separation or some other date.
How to Get Information
It’s very important that you get information about pension and
retirement benefits earned by you and your spouse. Find out
whether or not your spouse currently receives benefits. Contact
your current and former employers to find out about your benefits.
You could ask your spouse for information on benefits, or you could
go directly to current and former employers. Before releasing this
information, the employers might require your spouse’s written
authorization or an order from the court.
w Be clear on this critical point:
Have all the information about your spouse’s retirement
benefits before you divorce. It is nearly impossible to go back to
court and ask for a share of your ex-spouse’s benefit that you
learn about after the fact.
Negotiate an Agreement or
Let the Court Decide
A written property settlement negotiated during a divorce is usually
beneficial to both spouses. A property settlement agreement
usually goes into detail about who pays what and who gets what.
This includes alimony and child support, child custody and
visitation, the home, cars, investments, personal possessions and
retirement benefits. The agreement will eventually become part of
the divorce decree. Lawyers usually negotiate the terms of the
agreement for the spouses. If you and your spouse cannot agree
on how to divide the retirement benefits or any other issue, you
may have to go to court and let the judge decide. Beware: it is
extremely expensive and risky to go to court and let the judge
decide. Also, you will have to abide by the court’s decision, so you
may not come out with what you had asked for.
Options for Dividing Retirement Benefits
You and your spouse could decide to divide all the retirement
benefits in half. But you may have other alternatives. For instance, if
you and your husband have several retirement accounts between
you, one option is to “equalize” them. If your spouse has a
retirement account with a total value of $100,000 and your
account totals $60,000, the property settlement agreement could
indicate that you will keep your $60,000 and get $20,000 of your
spouse’s benefits. In this scenario, each of you ‘equalizes’ at
$80,000.
If your divorce involves a traditional pension plan, you may need to
hire a pension actuary to determine the total value of the benefits.
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Divorce and Retirement: How to Take Control of Retirement Benefits
5
The House or the Retirement Funds
Think carefully before waiving your right to retirement benefits in
exchange for your spouse’s share of the house. This is a common
arrangement but may not always be the best choice. While owning
the house may seem like the best option, you may find after just a
few years that you cannot afford the mortgage, taxes, repairs or
upkeep. Or you could decide to sell the house a few years later and
incur a hefty capital gains tax and realtor commission costs which
can be as high as 6%, closing costs ranging from 3 to 5%, and
repair costs necessary to sell the house which average 4%. These
selling costs can significantly cut into whatever equity there is in
the house. While these additions are a percentage of the selling
costs, they may be a much bigger percentage of the equity. Keep
in mind that the retirement benefits you walk away from could
come back to haunt you when you reach retirement age.
Get a “Qualified domestic
Relations oRdeR”
(QdRo)
If you plan to ask for a share of your
spouse’s retirement benefits, you
need a qualified domestic relations order
or QDRO (pronounced “quadro”). (Orders for retirement plans of
government employees may have different names.) The QDRO is a
court order that is usually written by one of the couple’s attorneys.
It orders the retirement plan to pay you a specified share of the
benefits based on the terms of your divorce agreement. Your
lawyer will submit the QDRO to the court for a judge’s signature.
After the judge signs the QDRO, send it to the plan administrator
as soon as possible. Your agreement should specify whether you or
your spouse is responsible for preparing the QDRO and paying the
related fees.
“The QDRO is like
having the ticket to
get into the movie.
No ticket, no access
to the movie.”
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6
w What happens if you don’t get a QDRO?
You could end up like thousands of women who reach retirement
age only to find out that they won’t get what the divorce decree
stated because the documentation wasn’t handled properly. See
the WISER Factsheets: 12 Mistakes Lawyers Make Preparing Pension
Orders During a Divorce and 10 Important Questions to Ask Your
Lawyer During a Divorce.
How to Minimize QDRO costs
Lawyers may charge several hundred dollars or more in legal fees
for drafting a QDRO. Typically, the spouse who is receiving the
transfer pays the legal fees to prepare the QDRO. This issue might
be negotiable. If you are the recipient, talk to your lawyer about
asking your husband to pay the fee. Be sure you understand
ahead of time what your lawyer charges for this work. Also, ask
whether the divorce fees include expenses for the QDRO. It may
be a separate expense.
Some 401(k)-type plans charge QDRO processing fees. They
typically range from $300 to $1,200. The plan will automatically
deduct the fee from either your share or your former spouse’s
share of the account. Be sure your lawyer checks with the plan
administrator to find out whether the plan charges QDRO fees.
If so, the QDRO should clearly state which party will pay the fee or
whether you will split it. You or your attorney should be able to
negotiate this payment with your spouse.
One way to help keep the fee as low as possible is for your lawyer
to write your QDRO based on a model or sample QDRO that the
plan administrator provides. This makes it more likely that the plan
administrator will readily accept the QDRO and reduces the
chance that your lawyer will have to rewrite it. Be forewarned that
your lawyer may reject this approach. The model QDRO could
contain provisions that may harm you, such as one in which you
waive certain legal rights.
Divorce and Retirement: How to Take Control of Retirement Benefits
7
Other QDRO Issues
Whenever possible, a traditional Defined Benefit Pension should be
split at the time of divorce by determining the Actuarial Present
Value of the benefit. To split that actuarial calculation an Actuary is
needed. If done this way, the divided benefit is not dependent on
when the ex-spouse decides to retire or if the ex-spouse survives to
retirement age. The divorcing spouse can take the benefit inde-
pendent of the other’s actions. In addition, this prevents finding out
later that the benefit was not protected by a survivor’s benefit.
Both your property settlement agreement and the QDRO should
provide details about your share of the benefits, such as:
w How will your share be determined? Usually a QDRO
specifies a certain percentage or formula for the retirement
plan to use. Sometimes, though, it says the former spouse gets
a certain dollar amount of the benefits. Your attorney should
be able to tell you which method applies to your situation.
w When will you get your share? The answer depends on a
variety of factors:
• The divorce laws in your state
• What the retirement plan allows
• Whether your former spouse is still working under the plan
or retired.
You might receive payment immediately after you divorce,
or you might have to wait until your ex-spouse reaches
retirement age or actually retires and applies for the pension.
w How will your share be paid? You may receive it as a single
lump sum, a monthly pension, or in some other form.
w What happens to your share if your spouse dies before you
are paid? Under some plans, you may lose benefits if the
QDRO does not provide some type of survivor protection for
you. Ask your attorney whether your QDRO should provide
survivor or death benefits.
w What if you die first? If you die before you receive all your
benefits, what happens to your remaining share? Does it revert
to your ex-spouse? Or to the pension plan? Or can you
designate a beneficiary (on a form the plan provides) to receive
these benefits? Ask your lawyer about your options. (Note:
Your will does not have any effect on money still in a retirement
plan.)
w Does the plan have cost-of-living increases? Some plans,
usually governmental plans, pay cost-of-living increases to
retirees. You should ask for a share of these, if possible.
w Will you receive interest on your share if there is a delay in
your payment? This issue would most likely come up if you
were receiving a share of a 401(k) or similar type of savings
plan. If you are getting 50 percent of the account balance as of
the date of divorce or date of separation, you may have to wait
several months to receive your share. Consider requesting a
share of any investment earnings or interest that your husband
receives on your portion of the account while it is still in the
plan.
w Does your spouse have a loan from the plan? Some retire-
ment plans, such as 401(k) plans, typically allow employees to
take loans. Whether the plan deducts the loan amount from
his share or yours depends on when and for what reason your
husband took the loan, and what your state’s divorce law says
about marital debt.
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8
Your QDRO Checklist
w You must get a QDRO for retirement benefits.
w Have your lawyer ask the plan administrator ahead of
time if the plan charges a QDRO processing fee or has
a model.
w Direct your lawyer to ask your husband to pay part of
your legal fees and any QDRO processing fees.
w Submit it to the court for a judge’s signature.
w Send the QDRO immediately to the retirement plan for
approval by the plan administrator.
w What tax will you owe on your share? At the time of the
division of a qualified plan such as a 401(k) account the spouse
can withdraw a sum penalty free. The withdrawn amount
requires a tax payment on it, but there is no extra 10% age
penalty even if the person is under age 59
1
/
2
. This is only true
for Defined Contribution Account plans and only at the time of
the division. If the divorced spouse decides later on that she
needs money from her share of the plan she would no longer
be eligible for this exception.
Part or all of the retirement benefits you receive through a
QDRO will probably become taxable income. You can delay
paying income taxes on a lump sum payment by rolling it over
into an IRA or another qualified plan (such as your own 401(k)
account). If you roll the funds over directly, you won’t owe taxes
until you withdraw the funds. One important exception includes
benefits paid to you as child support (instead of as marital
property or alimony). These are taxable to the employee and
not the former spouse. For more information on taxes, see IRS
Publication 575, Pension and Annuity Income, and Publication
590, Individual Retirement Accounts, at www.irs.gov.
Divorce and Retirement: How to Take Control of Retirement Benefits
9
conclusIon
Divorce is difficult on so many levels and that probably is an
understatement. It is important that you educate yourself ahead of
the process about your rights to retirement benefits in a divorce.
Most divorce lawyers are well-versed in family law and perhaps
know about retirement benefits, but are not experts. Many divorce
lawyers will ‘farm out’ the more difficult aspects of retirement
benefits. You may need to ask a lot of questions to make sure your
lawyer takes every step needed to protect your rights. Getting your
share of retirement benefits isn’t simply a matter of fairness. It
could be the difference between comfort and hardship in your
retirement years.
The Administration on Aging and the Women’s Institute for a
Secure Retirement (WISER) have jointly established a web-based
National Education and Resource Center on Women and Retirement
Planning. The Resource Center’s overriding goal is to assist the
Aging Network in educating women of all ages about planning
for their future financial, health and long-term care, and to
promote greater awareness and utilization of materials by
average women.
Materials available on the Resource Center’s website are for
personal use, or for distribution through an agency or organization.
WISER’s website address is www.wiserwomen.org. The Resource
Center’s website can be reached from WISER’s home page.
The Administration on Aging also funds pension information and
counseling projects. See Appendix 3 for contact information.
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Divorce and Retirement: How to Take Control of Retirement Benefits
11
AppendIx 1
Ten Ways to Avoid Losing the Pension
During a Divorce
Beware: don’t assume your family law/divorce lawyer knows
the many federal and state laws that set the rules for
splitting pensions.
Ask your lawyer:
1. Do you have experience dividing pension plans and drafting
pension orders — Qualified Domestic Relations Orders or
QDROs?
2. Do you have the necessary information from all of my
spouse’s pension plans?
3. Do you know that different types of benefits must be
specifically included in the pension order?
4. Will my payments stop if my spouse dies? Should I be asking
for a survivor’s benefit? If I remarry, will that change or stop
anyof my benefits?
5. How will state laws affect what I get, and can we negotiate
something better?
6. What could happen to my former spouse in the future that
could reduce or stop my benefits?
7. Have you investigated all possible requirements or legal
loopholes that might prevent me from receiving benefits?
8. Have you prepared a pension order to be signed by the
court at the time of my divorce?
9. Has the order been pre-approved by the pension plan?
10. Will you follow up to make sure that the final pension order is
sent to the pension plan and officially accepted by the plan
administrator?
AppendIx 2
Additional WISER Resources on Retirement Plans
and Divorce
These resources are available on WISER’s website, www.wiserwomen.org:
Divorce Laws by State: The American Bar Association publishes
annually updated charts that summarize basic laws in each state by topic,
including custody, alimony and grounds for divorce. www.americanbar.
org/groups/family_law/resources/family_law_in_the_50_states.html
State Retirement Pension Plans: Each state retirement system has its
own rules relating to the division of state employees’ pensions in
divorce proceedings. The Pension Rights Center has a map you can click
on to find out the retirement system rules in your state: www.pension-
rights.org/publications/factsheet/state-retirement-plans-and-divorce
Web Resources: Check out www.divorcehelp.com for good basic
information. A number of other divorce websites list state resources,
attorneys, interactive bulletin boards and other resources. For example,
www.divorcesource.com, www.divorce support.com,
www.divorcenet.com, and www.divorceinfo.com.
WISER Fact Sheets:
• Divorce: 7 Key Questions You
Need to Ask About Your
Spouse’s Pension
• Divorce, A Time for Caution
• 12 Mistakes Lawyers Make
Preparing Pension Orders
During Divorce
• IRAs and Divorce
• Pensions and Divorce
• 10 Important Questions to Ask
Your Lawyer During a Divorce
• Social Security and Divorce:
What You Need to Know
• Credit and Divorce
• Protecting Your Finances During
A Divorce
• Marriage and Finances: Planning
for the Unexpected
12
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Divorce and Retirement: How to Take Control of Retirement Benefits
13
AppendIx 3
Administration on Community Living (ACL)
Pension Counseling Projects
The U.S. Administration on Aging’s Pension Counseling and Infor-
mation Program currently serves 30 states. Free legal assistance is
available to individuals experiencing a problem with their pension,
profit sharing or reirement savings plans. For more detailed
information about what the projects do, check out the brochure
about the program and watch our video.
Contact one of the pension counseling projects below if you, your
company, or your pension plan are located within a project’s
service area. Assistance is provided free of charge.
Pension Rights Center
Not located within a service area? You may be able to find help
with your questions by visiting the Pension Rights Center’s Pension-
Help America.
Illinois Pension Assistance Project
Illinois Pension Assistance Project
Serving Illinois
Toll Free: (888) 425-6067
Mid-America Pension Rights Project
Michigan Pension Rights Office
Serving Indiana, Michigan, and Tennessee
Toll Free: (866) 735-7737
Ohio Pension Rights Office
Serving Kentucky, Ohio, and Pennsylvania
Toll Free: (866) 735-7737
Mid-Atlantic Pension Counseling Project
New York Pension Rights Office
Serving New Jersey and New York
Toll Free: (800) 355-7714
New England Pension Assistance Project
New England Pension Assistance Project
Serving Connecticut, Maine, Massachusetts,
New Hampshire, Rhode Island and Vermont
Local: (617) 287-7307
Toll Free: (888) 425-6067
South Central Pension Rights Project
Texas Pension Rights Office
Serving Arkansas, Louisiana, Missouri,
New Mexico, Oklahoma, and Texas
Toll Free (800) 443-2528
Upper Midwest Pension Rights Project
Minnesota Pension Rights Office
Serving Iowa, Minnesota, North Dakota,
South Dakota, and Wisconsin
Toll Free: (866) 783-5021
Western States Pension Assistance Project
California Pension Rights Office
Serving Arizona, California, Hawaii, and Nevada
Toll Free: (866) 413-4911
Local: (916) 930-4911
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Divorce and Retirement: How to Take Control of Retirement Benefits
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Other
Arizona
PCOA Pima Council on Aging
(520) 790-7262
www.pcoa.org
Chicago
Chicago Pension Rights Project
Legal Assistance Foundation of Metropolitan Chicago
(312) 341-1070
www.lafchicago.org
TTY: (866) 801-0505
Kentucky
Legal Helpline for Older Kentuckians
Toll Free: (800) 200-3633
Massachusetts
Gerontology Institute, University of Massachusetts, Boston
Local: (617) 287-7300
Toll Free: (888) 425-6077
www.umb.edu/gerontologyinstitute
Pennsylvania
PA Senior Law Help Line
Local: (215) 988-1242
Toll Free: (877) 727-7529
www.seniorlawcenter.org
helpline@seniorlawcenter.org
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dedicated to the education and advocacy that will improve
the long-term financial quality of life for women.
As the only organization to focus exclusively on the unique
financial challenges that women face, WISER supports women’s
opportunities to secure adequate retirement income though research,
workshops, and partnerships.
Providing Women
with a
Secure Financial Future
m
WISER, in partnership with the U.S. Administration on Aging (AoA),
maintains the National Education and Resource Center on Women and
Retirement Planning (the Center) to provide user-friendly financial
education and retirement planning tools for low-income women, women
of color and women with limited English-speaking proficiency. WISER’s
mission is to inform women about the issues that affect their long-term
financial security and to stress the importance of taking an active role in
planning for their future retirement. Through the Center’s one-stop-
gateway, women have access to comprehensive, easily understood,
information that allows them opportunities to plan for income during
retirement and to plan for long term care as they need it. The Center also
serves as a national clearinghouse and technical assistance center for
retirement planning information tailored specifically for women.
