Because even older couples have to deal with marital issues and the threat of divorce, it’s crucial to understand how retirement and pensions could be divided if a split is looming. Older couples often have more assets and these higher values often lead to more complications than from those earlier in their unions.
The Supreme Court of Ohio has held that any and all retirement benefits contributed during the marriage are considered marital property. The definition of “property” is broad, including employer-offered plans, federal public plans like the Civil Service Retirement System, state plans like the State Teachers Retirement System, or private plans like a 401(k) or SEP IRA.
Preparing These Assets for Negotiations
If both spouses do not agree upon the division and/or value of these assets, the spouses may need to hire a third-party evaluator to offer a neutral valuation. (This can also occur with businesses and real estate where spouses cannot agree upon the division and/or value of those assets).
While the value of a defined contribution plan (such as a 401k) may be the account balance appearing on your 401k statement, on the other hand, sometimes a defined benefit plan (i.e., pensions that provide a monthly benefit at retirement) may be valued by determining the present value of the future income. As always, spouses can avoid these costs if they can reach an agreement.
How Retirement Plans Could Be Divided
Retirement benefits could be split one a few ways, including:
- Each spouse receives one-half of each retirement plan
- Each spouse could receive one or more of the individual plans with a transfer with an equitable transfer of liquid assets to keep things “fair”
- A spouse could keep a particular benefit but award other assets of equal value to the other spouse. (Tax implications could come into play and require the guidance of a CPA.)
Regardless of the allocation of the retirement benefits, your attorney may need to prepare different types of court orders necessary to divide the retirement plan(s). To transfer an interest in a state retirement plan, the divorce court must approve Ohio’s Division of Property Order form specific to your divorce. To transfer an interest in a private employer’s “qualified” plan (e.g.401k), a Qualified Domestic Relations Order is necessary to execute. These transfer documents can also note whether specific plan benefits (survivorship rights, death benefits before retirement, etc.) will be provided to the opposing spouse.
Your divorce attorney can help you sift through the nuances of Ohio law while also being an advocate for you and your hard-earned retirement benefits during divorce negotiations. Call Garretson & Holcomb, LLC today at (513) 863-6600 to learn more about how they’ve helped Mason and Hamilton clients work through the divorce process.
