by Cathy Pareto, MBA, CFP®
Breaking up is hard to do. Breaking up is even worse when it involves money. Divorce is never an easy matter. Surprisingly enough though, getting distributions before age 59 ½ from retirement accounts settled through a divorce is not that tough.
When retirement assets (including a 401k) are part of the divorce settlement, the spouse may qualify for penalty free distributions before the age of 59 ½ using a qualified domestic relations order (commonly referred to as QDRO). This is great for spouses who are unemployed or need supplemental income after a divorce. Issued under the domestic relations law of a state, a domestic relations order is a court decree that gives an alternate payee the right to receive total or partial benefits that would be payable to a participant under the plan.
What is a Qualified Domestic Relations Order?
- A “qualified domestic relations order” (QDRO) is a domestic relations order that creates or recognizes the existence of an “alternate payee’s” right to receive all or a portion of the benefits payable with respect to a participant under a retirement plan, and includes certain information that meets other requirements.
QDROS are used to transfer money from a 401k (or other Qualified Plans) to an ex-spouse s IRA. The ex-spouse maintains the tax-deferral benefits that any other traditional IRA would have, and are also subject to the same restrictions.
With a QDRO, the tax code also allows for the money to be distributed directly to the ex-spouse without paying the 10% penalty. Of course, ordinary tax rates would still apply. This alternative would best be used in cases where the spouse needs an immediate lump sum. For example, funds could be used for a new home purchase, legal fees, new furniture, or whatever. All or a portion of the funds may be distributed in this manner. You may elect to have some distributed directly for immediate expenses and the rest rolled into an IRA, but the rollover must occur within 60 days. Once the assets are transferred directly to the ex-spouse, they cannot later be deposited to that spouse s IRA. Obviously unless you re in dire need for some immediate cash, it s usually in your best interest to take advantage of the tax deferral benefits of an IRA.
This QDRO method is applicable for certain employer sponsored retirement plans, not IRA s. Some plans, however, do not permit lump sum distributions to anyone. You don t need a QDRO to divide IRA accounts, but very careful planning is highly recommended. A direct rollover from one spouse s IRA to the ex spouse s IRA can be done if and only if outlined in the divorce settlement.
The rules for Qualified Domestic Relations Orders that apply to private sector retirement plans do not apply to Thrift Savings Plans (TSP). Unlike with private sector plans, a TSP account can be divided by means of: 1) a court decree of divorce, annulment, or legal separation or 2) a court order or court-approved property settlement agreement incident to such a decree. A court order may be issued at any stage of a divorce.
Penalty free distributions before age 59 ½
Penalty free distributions (before age 59 ½) from qualified retirement assets are allowed, but the rules are pretty inflexible. Qualified plans include, but are not limited to IRAs, 401k, Keoghs, SEPs, money purchase pensions. The tax code Section 72t allows for equal periodic payments to be taken from a retirement account penalty free. What s the catch? There s no catch really, but the deal is the amount must be fixed (absolutely no changes) and the account owner must take payments for five years or until the owner has reached age 59 ½ (whichever is longer). If any of the above criteria are not met, the 10% penalty plus additional interest may be due.
Distributions may be taken at least once per year, but account owners may take them monthly if they wish. Once the five year (or longer) period is reached, account owners are eligible to change or cease payments.
The downside of this alternative is that you get locked into distributions for at least five years, oftentimes even longer. This method is a great tool for supplementing or permanently replacing income. But, what happens if you find a part time job to supplement your income after you ve started 72t withdrawals?
Continuing to take distributions from your IRA when you don t need the money is a sure fire method to deplete your tax deferred dollars. But, once you ve started you can t stop unless you fork over some hefty fines. In some cases, that may be a better alternative than running the risk of exhausting your funds.
There is a graceful way to prevent this pitfall; but you ve just got to be a little creative. Legally, nothing prevents you from splitting your IRA into various IRAs. You can use one to fund your 72t distributions and the other you can set aside for growth. Determine the absolute bare bones minimum that you can live on for any extended period of time, plug in an assumed growth rate and factor in the IRS reasonable interest rate to arrive at a total amount that will sustain those withdrawals. This allows you a greater amount of flexibility over your distributions. In the event that the amount you set is not enough to cover expenses, you can always split the growth IRA again, open a new account and start the 72t distributions from the new IRA. All of this is perfectly legal and allows you to exert greater control of future distributions.
Retirement benefits, for many couples today, are often the most substantial assets in the marital estate. In many states, retirement benefits accumulated during the course of the marriage are divided equally. While divorce is not a matter to be taken lightly, there is some light at the end of the tunnel for spouses depending on income from retirement assets. But, the options must be carefully considered. Anyone facing a divorce should consult a financial planner, in addition to their divorce attorney, to help them assess their needs and the most appropriate distribution strategies going forward.
Financial Planning During and After a Divorce
The impact of a divorce is often emotionally and financially profound. Separating assets can leave you feeling insecure about your financial future, and emotionally drained. Because divorce can happen at any stage of life we start by helping you put your financial picture back together. We then set up a plan to help you get back on track to meet your goals.
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Disclaimer: This article is not intended to provide individual financial, tax, or legal advice. Please consult with your financial, tax and legal advisers for your specific situation.