What, if anything, does “vesting” mean in connection with the division of retirement plan assets in a divorce?
Vesting means ownership. If a retirement benefit/account is 30% vested, that means that the participant owns 30% of the benefit/account. However, should the participant remain in the Plan, that vesting could eventually reach 100% (since vesting grows with each year of Plan participation).
So, how does that affect division in a divorce? First, if a QDRO is used to divide the benefit/account, vesting is typically ignored because the deferred sharing of the benefit/account will most likely occur when vesting is 100%. Second, if the valuation method is used, vesting may be “considered” because the valued benefit/account will typically be offset against other marital assets at a time when vesting may be less than 100%.”Considered” means the probability of the participant spouse remaining in the Plan till full vesting occurs and that must be part of the valuation assumptions discussion.
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1) The Documents:
a) The Property Settlement Agreement: A marital estate consists of property. Typically, that property will include, but not be limited to, a residence; a vehicle; house furnishings; jewelry; savings accounts; and one or more retirement plans. When the parties, with the help of their advisors, decide how the marital property will be shared, that agreement will be written into a Property Settlement Agreement (PSA).
b) The Domestic Relations Order: The benefits/accounts in retirement plans (401(k), profit-sharing, and pension plans) are held in Trust for the plan participant and his/her post death beneficiaries. However, one exception to that rule is that a properly drafted Order (known as a Domestic Relations Order [DRO]), after it becomes a Qualified Domestic Relations Order (QDRO) when the terms of the Order are approved by the Plan Administrator and entered in the Court, will direct the Plan Administrator how and when to divide the plan’s benefits/accounts between the parties per their agreement set forth in the PSA.
2) Timing of the Creation of the QDRO:
It is not unusual to find that the last piece of marital property to be discussed is the division of retirement plan assets. Therefore, the health of the participant spouse could become an issue in the division deliberations. Although there is case law that supports the creation of a QDRO after the death of a participant spouse, it might be wise to consider addressing the QDRO early on in the marital property division deliberations.
3) Pre-Nuptial Agreements:
The laws and the regulations promulgated by Congress and the Departments of Labor and Treasury set forth the rules of operation for tax favored retirement plans. One of those rules stipulates that a participant’s spouse cannot lose his/her survivorship rights in connection with benefits/accounts in a tax favored retirement plan. Therefore, while a pre-nup could control living benefits/accounts in a retirement plan, the same is not true for the survivorship benefits/accounts.
4) Same Gender Marriages:
Note well that the act of marriage between 2 men or 2 women may eventually be exposed to divorce. This means that all of the deliberations needed to divide marital property in heterosexual marriages will be applicable to same gender marriages.
A guide to all aspects of dividing retirement plan assets in a divorce will be helpful to the parties and their advisors.
In order to divide fairly, in a divorce, the retirement plan benefits/accounts accumulated during a marriage, the couple and their advisors must understand the different types of retirement plans. Defined contribution plans create individual accounts for the participants; defined benefit plans create retirement benefits for the participants (sometimes shown as individual accounts in defined benefit plans known as cash balance plans).
One very large hurdle to overcome by people getting divorced is agreeing how and when to divide the retirement plan assets each, or both, have accumulated during the marriage.
Their first surprise is the fact that the value of the marital portion of their retirement plan assets is the first or second largest asset in their marital estate. This means that very careful attention needs to given to the sharing of this marital asset. Their second surprise is the fact that there is not one place (on the internet or within their team of advisors) that would guide them thru the maze of optional ways retirement plan assets can be divided between divorcing parties.
Announcing The Availability Of A Comprehensive Guide For Divorcing Couples And Their Advisors
The first or second largest asset in a marital estate is the benefits/accounts one or both married partners have accrued during their marriage. Accordingly, appropriately dividing these benefits/accounts in a divorce demands that each of the parties, and their advisors, be fully informed as to how and when that division should be implemented.
A comprehensive guide to dividing retirement plan assets in a divorce is now available. This guide will provide detailed information for: