Courtney ∙ Clark Law, P.C.Courtney ∙ Clark Law, P.C.
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Dealing with a 401(k) or pension plan in a divorce

How did you envision your retirement years? You may have dreamed of traveling, being closer to your children or sitting on your front porch with your spouse, holding hands and watching the world go by. Regardless of how you expected to spend those years, those plans are now in jeopardy because you and your spouse have decided to part ways. 

After spending years planning for retirement together, your spouse may have amassed a significant amount of money in either a 401(k) or a pension plan. Now that you are getting a divorce, you may want to ensure that you receive your fair share of the funds in the account.

Negotiating your share

First, you need to know that Illinois is an equitable distribution state when it comes to dividing property in a divorce. What this means for you is that you may not receive half of the marital assets, but it can happen. Instead, the courts look to divide your marital assets in a fair and equitable manner. Depending on the circumstances, this means that one of you may receive more than the other does.

In addition, the court only divides marital assets. Any assets or portions of assets that you or your spouse obtained prior to the marriage are not subject to division. This makes timing an important factor to consider when it comes to a retirement plan. Another crucial part of dividing a retirement plan is ensuring that you receive the funds you negotiated or received an order to obtain.

The QDRO

Having a settlement agreement is often not enough to receive the portion of your spouse's retirement plan the court awarded you in the divorce. In order to ensure you receive the funds from your future former spouse's retirement account that you negotiated or received through a court order, you may need to obtain a qualified domestic relations order. This document must be approved by the court and contain information regarding the account and the funds you are to receive.

It's important that you discuss the issue with the retirement plan's administrator to determine what information you need for the order. If not worded properly, the administrator may not accept the QDRO. You may even be able to use a form to begin drafting your order. Even with such a form as a guideline, you will still need to take care in wording the order you intend to present to the court.

You may find it invaluable to take advantage of the legal resources in your area to help you receive your fair share of the available retirement funds.

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Courtney ∙ Clark Law, P.C.
104 South Charles Street
Belleville, IL 62220

Toll Free: 866-921-8767
Phone: 618-207-3458
Fax: 618-234-8028
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