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Understanding how retirement accounts are split during a divorce

Tennessee is one of the majority of states that has adopted equitable distribution regarding divorce proceedings. This simply means that they assess what’s considered marital property and separate property. Then they divide the marital property in an equitable fashion, which doesn’t always mean straight down the middle.

Understanding marital versus separate retirement accounts

When you first get started in the divorce process, you and your estranged spouse will need to name all the assets that you have. These assets will be separated into two categories, which are marital assets and separate assets. A retirement account can be a little tricky in the sense that it may classify as both.

For individuals who already have contributed to their retirement account prior to getting married, those contributions are considered separate property. This simply means that whatever you had going into the marriage in your retirement account is still fully yours and not divisible due to the divorce. However, any contributions made to the retirement account after your marriage is considered marital property. Even if it was solely your income that was being contributed to the retirement account, it’s still considered marital property because all of the income that you earned during the marriage is considered marital property.

Obtaining the right order from the judge

When retirement accounts are divided up during a divorce, the party whose retirement account it is will need to submit a specific order for that division to happen. When the type of retirement account is a pension or a 401(k), the judge will need to order what is called a Qualified Domestic Relations Order. In the event that the retirement account is an IRA, the judge will need to issue a Transfer Incident to Divorce Order.

As you start to go through the divorce process, many questions will start to come up. It’s a good idea to do your research to understand how things are divided so that you can emotionally prepare yourself for the situation that’s ahead. It’s always advisable to contact an attorney to help you understand what will and won’t happen.


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Practicing in Bartlett Since 1977

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