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TX divorce lawyerWhile many divorcing couples go into the divorce process with the expectation that they may disagree on certain issues, such as who will retain the family home, many fail to remember that they will also need to determine how any retirement assets like 401(k) accounts will be divided. However, it’s important to take these types of unique assets into account when distributing assets, as they can play a crucial role in helping individuals become financially secure after their marriages are dissolved. For help understanding the complexities of dividing retirement accounts during your own divorce, please contact one of our dedicated Round Rock high asset divorce attorneys today.

Does the Account Qualify as Community Property?

How a 401(k) account is divided upon a couple’s divorce depends in large part on whether the funds in the account are characterized as community property or separate property. In most cases, 401(k) plans do not simply fall into one category or the other, as it is common for 401(k) plans to contain both types of property. This is because even if a 401(k) plan was started by one of the parties before a marriage took place, which would technically make it separate property, the interest in the plan that accrued during the course of the marriage will still qualify as community property, making it equitably divisible under Texas law.

Dividing the Account

Spouses who believe that they have a claim to the interest on a retirement plan will need to determine the amount of their share, which will be equal to the value of the plan at the time of the marriage (when it was considered separate property) minus the value of the plan at the time of divorce.

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TX divorce lawyerOne of the most common points of contention in any divorce is how a couple’s assets will be divided upon dissolution of their marriage. Although most couples understand that this will involve dividing relatively common assets, such as bank accounts, the family home, and vehicles, it’s important to remember that more unusual property, like retirement accounts, will also need to be divided. In most cases, at least some of the contents of a retirement account are considered marital property, which means that they must be divided equitably between the spouses. While this could mean that each spouse receives an equal share of the benefits, this is not always true, as courts are generally guided by what would qualify as equitable distribution when making their decisions.

Whether your retirement account pays out on a regular basis or you can withdraw as you see fit depends in large part on the type of account in question and the contents of your Qualified Domestic Relations Order (QDRO). To learn more about dividing your own retirement account upon divorce, please contact a member of our high asset divorce legal team today.

What Is a Qualified Domestic Relations Order?

QDROs, or Qualified Domestic Relations Orders, are court orders that lay out the ground rules for how a retirement account will be used following a divorce, including how its contents will be divided. These documents are necessary for most types of retirement accounts, including 401(k)s and IRAs and are used to verify a person’s right to receive a portion of the benefits paid out of a retirement account. Basically, this means that QDROs are used to name a former spouse as an alternate payee upon divorce, even if he or she didn’t actually participate in the plan.

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TX divorce lawyerDuring Texas divorces, a couple’s marital property is subject to division. In most cases, this means that divorcing spouses must grapple with who will retain a variety of assets ranging from houses and vehicles to financial assets, such as bank accounts and pensions. Of these types of assets, financial property is often the most difficult to divide. This is especially true for pensions, the status of which depends on when the pension was acquired and whether a pre-existing agreement is in place. For help determining whether your own pension qualifies as marital property and whether you can expect a portion of those payments upon divorce, please contact a member of our high asset divorce legal team today.

Community Property States

Texas is one of only nine community property jurisdictions, which means that almost all assets acquired by a couple during their marriage are considered to belong equally to both parties if they later decide to divorce. The assumption in most cases is that these assets will be divided 50/50 between the parties. This rule applies to physical property, such as real estate and personal possessions, as well as financial assets like retirement accounts and pensions.

Marital vs. Separate Property

In general, retirement assets earned during a marriage are treated as marital property, including:

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Texas complex litigation attorney, Texas high-asset divorce lawyer, asset division in divorce, It is no secret that the higher the account balance, and more diverse the assets inside a 401k, the harder the division is in a high-asset divorce. Recent changes to the law, as well as the interpretation of existing law, has fundamentally changed the way that these retirement accounts are valued and divided pursuant to a marriage dissolution action.

Valuation Methods

The traditional straightforward approach – account balance accumulated during the marriage divided by two – may be inappropriate for some complex property divisions in divorce actions, particularly if the account contains non-cash assets.

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