Pensions and Retirement Plans in Divorce

In Florida, pension benefits and retirement accounts accumulated during a marriage may be subject to division between the spouses in the event of a divorce. For many individuals, especially those who are retired or nearing retirement, these assets represent a substantial portion of their retirement income and savings. If you have questions about pensions and retirement plans in divorce, a West Palm Beach divorce lawyer can help. At The Law Office of Jessica Mishali, P.A., we can protect your interests and address any concerns that you have regarding the potential impact on your retirement savings and the other financial aspects of a divorce.

A dissolution of a marriage necessarily involves dividing shared assets and joint property between the spouses. Vested and non-vested retirement benefits, savings, and funds that accrue over the course of a marriage are considered marital property in Florida. As a result, unless the parties have a valid prenuptial agreement in place, their retirement savings and other marital property are subject to equitable distribution. It is important to note that retirement benefits earned before or after the marriage are not necessarily marital property. Often, therefore, only a portion of the value of the retirement account may be subject to division, while the contributions made outside the marriage will remain the separate property of the spouse who made them.

In some cases, instead of splitting their respective retirement accounts, the spouses can negotiate by subtracting the value of the plans from other assets and property that they receive in the divorce. Conversely, a division of retirement benefits usually requires a Qualified Domestic Relations Order (QDRO) from the court. A QDRO establishes the non-employee spouse’s legal right to a certain portion of the benefits of a retirement plan, and it instructs the plan administrator to make payments accordingly. Described below are common types of retirement plans, which will determine the options for distribution.

Pensions and other defined-benefit retirement plans guarantee a specific amount of payments upon retirement if all the requirements are met. Some defined-benefit plans may allow the non-employee spouse to take a lump sum payment at the time of the divorce, or they can elect to wait and collect payments at the time of the employee spouse’s retirement. However, pensions from federal, state, or local government employers are not legally required to accept QDROs. While some government pension plan administrators are permitted under state law to voluntarily accept QDROs, others may refuse. In these cases, the parties may negotiate the substitution of another marital asset equal in value to the pension benefit, or they may prepare other types of documents to ensure that the non-government spouse has access to the funds upon retirement. For service members, their military retirement pay may be treated as marital property in a divorce, although some restrictions may apply.

Defined-contribution retirement plans include 401(k) plans, traditional IRAs, and Roth IRA accounts. A defined-contribution plan does not pay a specific benefit amount upon retirement. Instead, employee or employer contributions are made into a tax-deferred investment account, from which the employee can draw during retirement. When a defined-contribution retirement plan is subject to division in a divorce, the court will typically apply a formula to make the appropriate calculations.

Conferring with an experienced divorce lawyer may help you determine the best course of action regarding your pension and retirement savings. At The Law Office of Jessica Mishali, P.A., we advise residents of West Palm Beach, Boca Raton, Jupiter, Fort Lauderdale, Pembroke Pines, Davie, Coral Springs, Stuart, Hobe Sound, Pompano Beach, Wellington, Delray Beach, Royal Palm Beach, Boynton Beach, Indiantown, Hallandale Beach, Hollywood, Plantation, Palm City, Jensen Beach, and other locations throughout Palm Beach, Broward, and Martin Counties. Request a consultation with one of our dedicated attorneys by calling (561) 833-2772 or contacting us online.