Protecting Your Retirement Benefits
Any pension plan that you have contributed to during your marriage is considered to be a marital asset. This means your 401(k) benefits are subject to equitable distribution if you get a divorce.
It is extremely important to carefully calculate the value of any and all retirement accounts you have. Our Bronx divorce lawyers can help you obtain summary plan descriptions for any employer-sponsored retirement accounts, as well as the balances of all other retirement plans.
On top of calculating the current value of these plans, you will want to determine how much of that total is separate property and how much is marital property. Any contributions made before you got married are considered separate property and will not be subject to division. Having a lawyers on your side during this process can help protect your benefits and ensure your spouse is not given more than he or she is legally entitled to.
Obtaining Your Share of Your Spouse’s Retirement Plan
New York is an equitable distribution state, meaning that marital property is distributed equitably but not necessarily equally. In other words, a judge will award you the amount he or she believes you are entitled to based on your contributions during the marriage, rather than just splitting the property 50/50.
That said, you have a legal right to marital property, which includes your spouse’s 401(k) plan and other retirement accounts if he or she contributed to them while you were married.
Once a 401(k) has been legally split, you will have a say in how you collect your portion.
You may choose to:
- Transfer the proceeds into your own retirement plan
- Leave your share in your spouse’s existing plan and obtain the payments when he/she retires
- Take the money up front as a cash payment
Other types of retirement plans can be divided and accessed in a variety of ways. For example, all contributions to a Roth IRA account while you were married will generally be split in half between yourself and your spouse unless you agree on a different division agreement. A divorce attorneys can help you determine what percentage of a retirement account you should be entitled to and fight to ensure you receive that amount.
Have more questions about divorce and your 401(k) or retirement plan? Contact Empire Law at (347) 343-5467.