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Splitting retirement monies when divorcing.

Wilmington, MA |

How does this work? Who does the actual splitting and transferring of the money. When the divorce / settlement is reached who decides on the exact numbers and dates by which these funds need to be transferred?

Attorney Answers 5


Under Massachusetts law, the law only requires an equitable distribution. Massachusetts General Laws c. 208 s. 34 enumerates many factors that can be considered in dividing all assets, including retirement money. Ultimately, this is something you will have to negotiate with your spouse. Depending on the type of retirement plan, the plan may have to be divided by a Qualified Domestic Relations Order (or QDRO).

You should speak with an attorney to address this issue. Good luck!

NOTE: This answer is for educational purposes only. By using or participating in this site you understand that there is no attorney client privilege between you and the attorney responding. This site should not be used as a substitute for competent legal advice from a licensed professional attorney in your area who regularly practices in the subject matter which your question is about. You should develop an attorney client relationship with the lawyer of your choice so that your communications will be subject to the attorney client privilege and have the other benefits of a professional relationship. The law changes frequently and varies from jurisdiction to jurisdiction. The information and materials provided are general in nature, and may not apply to a specific matter as partially described in the question

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This is a matter that is negotiated by the parties and their counsel. Most often,a Qualified Domestic Relations Order (QDRO)is required to divide the retirement asset. The QDRO will have the terms of the division: the valuation date, the percentage to each party etc. Additionally, often a separation agreement will contain a provision which states that the QDRO will be completed within a certain time frame (60, 90 days) and the parties also negotiate who will prepare the QDRO and how the cost will be apportioned. Retirement assets are often the most significant assets to be divided, and there are issues that can be involved that need to be properly explored: the nature of the plan, what option is being chosen if it is a defined benefit plan, how the asset will be transferred etc. It is important that you engage a family law attorney to assist you so these issues will be properly addressed. Best of luck to you.

This answer is intended for general informational purposes, and does not create an attorney-client relationship.

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Retirement assets are usually split by a QDRO. Essentially the QDRO is a document used to split anything from a 401k to a pension. This allows monies to be transferred out of a retirement account from one spouse to another in a divorce without there being any tax consequences.

The timing and amount are either decided at trial or the exact terms are spelled out in a separation agreement that you and your spouse might reach. These terms are then approved by the court and an order is signed by the judge and sent to the plan administrator.

This is sometimes a difficult task to complete properly so you should really consult with an attorney who can do this for you. Also keep in mind if you are dealing with a pension. A split down the middle isn't possible without first having the pension valued.


Karla Mansur, Esq.
Law Office of Karla M. Mansur, LLC
81 Middle Street
Concord, MA 01742
P: (978) 341-5040 / F: (978) 401-0687

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Your divorce agreement MUST include the values of any retirement accounts. They are usually divided as of the day of the divorce hearing. If the retirement accounts are 401k's or pensions, they can only be divided by a QDRO (qualfieid domestic relations order) which must be drawn up by a specialist. You need a lawyer to do this. Hire a lawyer! If this is not done right the person seeking half of the other spouse's retirment account value may lose their right to retirement benefits.

Good luck.

Steve Coren

This answer does not consitute legal advice and does not create an attorney-client relationship. The answer is based only on the facts presented. This answer is basd only on Massachusetts law.

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Just to add a couple of points to the good answers provided by the other attorneys, you may not need a Qualified Domestic Relations Order for every type of retirement account. For instance, IRAs don't need a QDRO to be divided. Also, your Separation Agreement is actually accessible to others through the court, but your required court financial statement is kept private. Many times in a separation agreement the actual values are not included, but the agreement will reference the court financial statement that would include the values.

There is more to dividing the marital estate than meets the (untrained) eye. My colleagues are correct that you should really try and hire an attorney if possible, even if on a limited basis. You really only get one shot at getting the property division done the right way!

Best of luck to you going forward.

This answer should not be considered legal advice. Each case is fact specific, and not enough information is available in this forum to provide any lega advice to you, just very genera information. By answering this question, we are not entering into any lawyer-client relationship.

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William Gramer

William Gramer


To add to the point that IRA's don't need a QDRO, I will typically use an "IRA Transfer Order" which has the trustee-to-trustee transfer language and often the financial institutions will provide a sample form. It will need to be signed by the Court in the same fashion as a QDRO.

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