Divorce and Retirement Assets
There are many misconceptions about what part of a person’s retirement assets are marital property and therefore subject to being divided as part of a divorce.
The first question is: Are retirement assets marital property in Pennsylvania?
The answer depends on whether you and your spouse signed a pre-martial agreement (such as a pre-nuptial agreement) before marriage. Without a pre-martial agreement saying otherwise, retirement assets are marital assets and are subject to division. With a valid pre-martial agreement, these assets can be protected and not subject to being divided.
Let’s presume, that there is no pre-nuptial agreement between husband and wife and that at the time of marriage, the parties were already employed and each had a 401(k) or other similar retirement account or a defined benefit plan, which pays a person a monthly amount at retirement (there are also many other forms of retirement plans subject to equitable division at divorce).
If the parties have retirement assets at the date of their marriage, the value of those assets on the date of marriage is not joint property. The date of marriage value remains the separate property of each party, in the event of divorce. However, the increase in value of this separate property, during the marriage is marital property, as are the contributions into the account by each party during the marriage (including the matches made by an employer, if any).
For example, at the date of marriage, the wife had a 401(k) worth $10,000. That $10,000 would remain the separate property of the wife at divorce. However, let’s presume that the $10,000 increases in value by $20,000 during the marriage. That $20,000 increase in value during the marriage is marital property.
Further, as stated above, all contributions made by the wife into her 401(k) during the marriage, as well as the increase in value of those contributions during the marriage, are also marital property subject to division.
Also be aware that the removal of any money from a 401(k) before a person is 59 ½ years of age is subject to not only the payment of income tax on the amount removed, but also an IRS penalty. The removal can be done in a tax and penalty free manner, through the use of a domestic relations order, which can be prepared by a knowledgeable family attorney or a specialist who prepares these orders.
Don’t get tricked into thinking that retirement assets are not marital property. They are marital property and go into the “marital pot” together with the value of all other assets acquired during the marriage. Please contact our office and let one of our experienced attorneys help you navigate through the divorce process.