Retirement Plan Valuation and Characterization

Retirement plans fall into two main categories: defined contribution plans and defined benefit plans. If a plan or part of a plan was earned during the marriage, that part will be characterized by the family law courts as community property. There may be issues as to when a retirement plan, or a portion of a retirement plan, was earned which must be determined by a divorce court unless the parties settle the issue. The issues may have a legal component and may also tie to the date of separation. Generally, the earnings, accumulations, and losses relative to the community interest in a plan will be characterized as community property. Depending on the type of plan, a Qualified Domestic Relations Order (QDRO) may be required to roll out the non-employee’s share of a plan into a separate IRA Rollover account without tax consequences. The assets in these plans are pre-tax and that fact is relevant as to how the community share of the plan fits into the overall settlement structure.

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