Dividing Retirement Funds When You Divorce

 Posted on December 30, 2020 in Main

Securing your financial future by helping you save for retirement is something your employer may offer you as an employee. In addition, you may have saved on your own to build a healthy nest egg for your golden years. While money deposited in retirement accounts generally belongs to the person whose name is on the account, when that person gets divorced, if there are no agreements to the contrary, his or her spouse is entitled to an equitable portion of the money contributed into the retirement accounts during the marriage.

Retirement Funds as Marital Property

In Illinois, despite in whose name the account is held, retirement benefits, including pensions and 401k savings accounts, are considered marital property if they are acquired after the marriage was formalized and before a formal dissolution of a marriage is granted by a judge. If either spouse wants to challenge the classification of the retirement benefits as marital property, he or she has to show the court that the benefits were acquired in a way that qualifies as non-marital property under the law.

When a couple is getting divorced, each spouse can request an equitable portion of the other's retirement benefits be awarded by the court. However, Section 502 of the Illinois Marriage and Dissolution of Marriage Act provides that the couple could also agree on how to deal with the retirement benefits themselves. For example, they can decide to renounce all claims to the benefits, or, if they both have retirements funds, they can agree to an even split of the accounts. These agreements could be written into a marital settlement agreement, which is then reviewed by a judge before being entered as part of the final Judgment for Dissolution of Marriage.

Obtaining a QDRO/QILDRO

In order to receive the portion of your former spouse's retirement funds to which you are legally entitled, your attorney must have a Qualified Domestic Relations Order, or “QDRO,” entered by the court. This is an order based in federal law, but applicable to states as well, that creates or recognizes the right of a person other than the beneficiary of a retirement account to receive all or a portion of the beneficiary's retirement funds. If your former spouse's retirement plan is through the Illinois government or public organization, the order will be a Qualified Illinois Domestic Relations Order or “QILDRO”. The details of obtaining and creating these orders can be complicated and are best discussed with a knowledgeable divorce attorney who can advise you.

Contact a Wheaton Asset Division Attorney

If you are thinking about getting divorced, or have been served with divorce papers, you should contact an attorney to discuss how your retirement benefits may be affected. Contact one of the experienced DuPage County divorce lawyers at MKFM Law to get the guidance you need. Call 630-665-7300 for a confidential consultation today.

Sources:

https://www.ilga.gov/legislation/ilcs/ilcs5.asp?ActID=2086&ChapterID=59

https://www.law.cornell.edu/uscode/text/29/1056

https://www.ilga.gov/legislation/ilcs/fulltext.asp?DocName=004000050K1-119