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972-248-8080 DALLAS
713-830-2207 HOUSTON
512-691-4100 AUSTIN
wilson whitaker rynell attorneys and counselors at law logo
972-248-8080 DALLAS
713-830-2207 HOUSTON
512-691-4100 AUSTIN

Dividing IRAs, 401Ks, and Pensions in Divorces in Texas

ATTORNEYS IN DALLAS

Divorce allows IRA and 401K assets to be divided in a Qualified Domestic Relations Order (QDRO).

Dividing IRAs, 401Ks, and Pensions in Divorces

In Texas, any income earned during the period of a couple's marriage is considered community property, unless proven otherwise. This includes any contributions to an IRA or 401K or earnings from pension benefits. Properly assessing and distributing retirement funds is critical when dividing assets in a divorce, and it's crucial for both parties to be aware of the tax implications involved in any division. Dividing IRAs, 401Ks, and pensions during a divorce can be intricate.

Are Retirement Benefits Community Property in a Divorce?

Retirement accounts, such as IRAs, 401Ks, and pensions are unique in that they can only be held in one person's name. However, any contributions made during a marriage are considered community property, regardless of which spouse earned the money. It is not uncommon for one or both spouses to have had retirement accounts prior to the marriage, in which case any contributions made before the marriage would be considered separate property. Dividing these types of accounts during a divorce can be complicated, as it requires distinguishing between separate and community property, taking into account factors such as interest and changes in the account's value.

Dividing Pensions and 401Ks in a Divorce

Sometimes divorcing couples agree not to divide their retirement assets and instead will allocate the value of the retirement funds owed to each party using other assets that are easier to divide. However, if retirement funds are divided, certain rules must be followed to avoid severe tax penalties. For instance, any retirement plan offered by a private employer, such as a 401K or pension, is subject to the Employee Retirement Income Savings Act (ERISA), a federal law that permits dividing some retirement plans during divorce without tax penalties.

To divide retirement plans governed by ERISA, a court must issue a Qualified Domestic Relations Order (QDRO), specifying how retirement plan assets will be distributed in a divorce. A QDRO is separate from the divorce decree and must conform to both state and federal law, as well as the specific requirements of the retirement plan.

Dividing IRA's in a Divorce

IRAs are not subject to ERISA and therefore require a different method of division in divorce. To avoid tax penalties, funds from an IRA can be transferred to a former spouse only if the transfer is explicitly provided for in a divorce decree or settlement agreement that is incorporated into the decree. The decree or settlement agreement must clearly state the amount of funds to be transferred to the former spouse and be sent to the IRA administrator. The spouse receiving the funds must then establish a new IRA. Upon receipt of the decree, the administrator will divide the IRA as directed by the decree and transfer any funds owed to the former spouse into the new IRA. This transfer is defined as a transfer incident to divorce, and neither party will face tax penalties on the transfer. If an IRA is divided in a different manner, the account holder will be subject to tax penalties.

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In order to best prepare yourself during the divorce process, it is vital that you have a qualified divorce attorney by your side. Our divorce law firm is dedicated to providing knowledgeable, professional, and effective legal counsel for all types of family and divorce matters. When you work with our experienced Dallas family law attorneys, you can trust that we will have your best interests in mind.

Speak with an Experienced Divorce Attorney

Dividing IRAs, 401Ks, and pensions during divorce can be complex, so it is crucial to have an experienced lawyer guide you through the process. At Wilson Whitaker Rynell, our skilled attorneys have extensive experience helping individuals evaluate their retirement benefits and secure their rightful share of any funds. Our firm represents clients in divorce cases in various Texas cities, including Dallas, Austin, Houston, Fort Worth, and all cities within Dallas County, Tarrant County, Collin County, and Denton County.

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