If you file for divorce, the court will divide any assets you acquired during your marriage between you and your ex-spouse. This distribution of marital property includes retirement accounts, which is why you may have to hand over a portion of your retirement plan to your ex. In return, you can receive a part of theirs. The process of distribution varies depending on the retirement plan. The division of Individual Retirement Accounts and other qualified plans is different.
Individual Retirement Accounts
If you have an individual retirement account, you may have to transfer a percentage of your interest in your account to your ex-spouse. This transfer incident is not taxable. Once your ex-spouse receives the funds, they will legally own them and can roll over the payments to another retirement account without penalties or tax consequences. After your former spouse gets the retirement money, they will be responsible for paying taxes for any transaction or distribution they make with it.
Qualified plans or 401(k)
If you have a qualified plan or a 401(k), your ex will need to file a Qualified Domestic Relations Order (QDRO) with the plan administrator before they can receive any portion of that plan. The QDRO is an order for your retirement plan to pay child support, alimony or marital property rights to your ex. Your ex-spouse will need to report the payments they receive as if they were the plan participants. They will be legally able to roll over these payments into another retirement account of their choice without paying any taxes.
The court can award all or only a portion of your retirement plan to your former spouse, depending on the circumstances. However, if you had a prenup agreement with your ex, you might keep your retirement assets separate.