July 7, 2024
Pension Benefits and retirements funds are considered the personal property of the owner. However, these accounts are subject to distribution in a divorce proceeding. In fact, any property of one party in a marriage is subject to equitable distribution. Please see the section on distribution of marital property on this web page.
Again, just because the retirement/pension fund is subject to distribution, does not mean that the other spouse will automatically get one half of that property. The court will take into consideration a number of factors when determining if a fund should be distributed to the other spouse and how much. The court has wide discretion to make a determination based on what the court feels is fair and equitable. The courts consider the length of the marriage, contributions to the marriage, the ages of the parties, the cause of the breakdown of the marriage, and other factors.
When the court does make an order for such a distribution, the event is not necessarily a taxable event. The Internal Revenue Code provides for a procedure to be followed to distribute an IRA or 401(k) account without having to pay taxes or penalties for early withdrawal.
A case that involves significant pension or retirement benefits will require special expertise to present the correct issues to the court. The first issue is to place a proper value on the asset. An IRA or 401(k) might be easy to value, however, pensions are more complicated. Attorney Kevin L. Hoffkins has this expertise in presenting evidence to properly value a pension to a court. The second issue involves aggressively arguing why a pension/retirement asset should be divided in a certain way or not divided at all. These arguments require knowledge of the law, and a familiarity with the type of evidence that most impresses the court. Attorney Kevin L. Hoffkins is very experienced in arguing these issues in divorce court in the proper form that produces the optimum result for his clients.
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