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Your Rights to Retirement Assets

E. Noreen Banks-Ware Jan. 23, 2022

The stress of a divorce can be overwhelming, and when you understand just how much is at stake – including your retirement funds – that stress increases. Realizing that your divorce may affect all the hard work you’ve put into your preparations for retirement can be a source of anxiety and fear.

Attorney Banks-Ware can help you during this challenging time and guide you through important issues like your retirement accounts. How assets are divided is a sensitive part of the divorce process, but with the help of a skilled divorce attorney, you can be confident that your best interests are represented.

For over 30 years, Attorney Banks-Ware has worked in family law matters and gained a reputation as a skilled trial attorney in Georgia. E.N. Banks-Ware Law Firm LLC is proud to represent clients in Lithonia, Decatur, Conyers, and Covington, Georgia, as well as the nearby areas.

Equitable Division of Marital Property

The Georgia courts intend to divide marital property equitably. Equitable does not always mean equal. The goal is to fairly divide all marital property as it is designated by the law.

According to Georgia law, all property acquired by either spouse during the marriage is marital property. That property is subject to equitable, or fair, division.

Determining Factors

Deciding who will keep what property after the divorce can be a complicated matter. To simplify the process, the court considers several factors to help determine who will keep what.

Some of these factors are entirely financial, including:

  • If either spouse will receive alimony, and if so, how much that spouse will receive

  • The income and earning potential of each spouse

  • The debts of each spouse

  • Each spouse’s assets and financial status

  • The future needs of each spouse (such as retirement planning)

The court will also consider each spouse’s past behavior. For example, they will look at conduct and misconduct during the marriage. The court will also consider whether any assets were wasted during the marriage and if so, the spouse who wasted them may receive less marital property.

How Retirement Assets Factor In

When you think of property division in a divorce, you may naturally think of how the former couple will split the house, their cars, their belongings, and even their savings accounts. The division of retirement accounts is similar to the division of these other assets.

If you are uncertain how an account that you have been contributing to will be considered in a divorce, speak with an experienced family law attorney.

The most common types of retirement assets include:

  • Defined benefit plan

  • Defined contribution plan

  • Military benefits

  • Government pension

  • Savings account

  • Traditional retirement plans (such as a 401K, IRA, and annuities)

It’s important to know that only the amount that was earned during the marriage is considered marital property. Any retirement accounts earned prior to the marriage would not be considered shared marital property.

Qualified Domestic Relations Order

A Qualified Domestic Relations Order (QDRO) might be necessary when one of the former spouses will still be contributing to a retirement benefit and the benefit cannot be liquidated immediately during the divorce.

The QDRO divides the retirement benefit into two different accounts. One of those accounts is for the spouse who is actively contributing to the retirement benefit. The other is for the spouse who will not be.

Understanding your rights under a QDRO can be a complex task. An experienced family law attorney can help you manage your QDRO.

Tax Ramifications

According to the IRS, it is possible to roll over tax-free all or part of a distribution from a plan received under a QDRO. To learn more about how a QDRO may affect your taxes, speak with a knowledgeable family law attorney.

Attorney Banks-Ware Is On Your Side

Planning for your retirement is extremely important, and divorce makes it complicated. Attorney Banks-Ware can help you advocate for your fair share of retirement accounts in the divorce process.

E.N. Banks-Ware Law Firm LLC is dedicated to representing clients in Lithonia, Decatur, and Conyers, Georgia, as well as the nearby areas. Contact the firm today to schedule a consultation.