Not all retirement plans, savings, and assets are subject to division in an Illinois divorce.
More and more divorces are happening later in life - with the average age of divorce being 46 in men and 44 in women. That's why it's natural for so many couples facing the dissolution of their marriages to have questions about the effect divorce may have on their retirement.
Not all retirement resources are subject to a divorce settlement. However, unless you have a postnuptial or prenuptial agreement, your spouse can likely claim at least part of your 401k, IRA, or other retirement assets.
Here's a quick guide on what happens to retirement plans, savings, and assets in an Illinois divorce. This information is general and may not apply to all situations. If you are getting a divorce in Illinois and want information specific to your legal situation, contact Courtney Clark Law, P.C. in Belleville for a free consultation to see how an experienced divorce attorney can help you.
What happens to my retirement in a divorce?
Illinois is an equitable division state. When petitioned for a divorce, the court will identify all marital property, and a judge will decide what portion of your retirement savings qualifies as marital property. Without a marital separation agreement, the state will divide it in a way that it deems most fair.
Money and assets saved before the marriage may be excluded from the division. But any money added to your retirement account during your marriage years will likely be considered marital property. Factors considered when dividing retirement assets include the length of the marriage, each spouse's financial situation, and contributions to the accounts, among other things.
Retirement plans, savings, and assets affected by divorce in Illinois
In Illinois, there are various retirement accounts, retirement plans, and common sources of retirement income that may be subject to division during a divorce. Depending on an individual's circumstances, retirement assets that may be divided in a divorce include:
Individual Retirement Accounts (IRAs)
Traditional IRA, Roth IRA, SEP-IRA (Simplified Employee Pension IRA), and SIMPLE IRA (Savings Incentive Match Plan for Employees IRA).
Employer-Sponsored Retirement Plans
401(k) Plans, 403(b) Plans (for employees of public schools and certain tax-exempt organizations), 457 Plans (for government employees), and Thrift Savings Plan (for federal employees).
Self-Employed Retirement Plans
Solo 401(k) or Individual 401(k), SEP-IRA, and SIMPLE IRA.
Some employers offer pension plans that provide a monthly income during retirement based on factors such as years of service and salary history.
Annuities are financial products that provide a guaranteed stream of income in retirement. They can be purchased through insurance companies or other financial institutions.
Any stock options, stock grants, bonds, or real estate acquired during the marriage may be considered retirement income to be divided.
Deferred Compensation Plans
These plans - 457 plans, nonqualified deferred compensation plans, or similar arrangements - allow employees to defer a portion of their salary until retirement, typically through automatic deductions.
Retirement assets that may be unaffected by divorce
However, not all retirement funds and assets are subject to division, including:
Retirement funds, plans, and savings accounts acquired before the marriage are generally considered separate property and may not be subject to division. However, the situation can become more complex if there has been a commingling of assets or contributions made during the marriage.
If one spouse receives an inheritance during the marriage, it is often considered separate property and may not be divided in the divorce unless it has been commingled with marital assets.
Social Security benefits
Social Security provides a monthly benefit to eligible individuals who have paid into the system during their working years. It is not typically subject to division in divorce.
Do you have more questions about divorce and retirement in Illinois?
Having the courts involved in your finances is complicated under most circumstances, but in a divorce where emotions run high and things can quickly get complex, it's even easier to make a mistake.
At Courtney Clark Law, P.C., our divorce attorneys have nearly 40 years of experience helping clients throughout Illinois find their way forward. We know how to cut through the legal red tape, look out for your best interests, and work toward the outcome your case deserves.
While no two divorces are the same, you can rely on our experience to find a strategy that meets your specific needs and goals. Get answers to your questions and see how an experienced divorce lawyer in Illinois can help you. Contact us today to set up a free case consultation.