I am going through a divorce and my STBE is 50 and I am 35. We both have pension and 401K. I am wondering when it is divided via QDRO, when we will each get the retirement share? Do I wait till I retire to get his share or I get it when he retire?
Employee Benefits Lawyer
Way too many variables to answer fully. It depends upon what each of the four plans involved provide. Pensions rarely make lump sum divisions. This means that the non-employee spouse will typically get a monthly payment commencing when the employee spouse retires. 401(k)s are more likely to permit a division of the account pursuant to a QDRO and the non-employee spouse will typically get paid as soon as is practical.
Each spouse can provide that the other spouse gets anywhere from 0% to 100% of the marital benefit depending upon the other property owned by the marital estate. Do yourself a favor. It is usually easier to divide 401(k) accounts than pensions. If you can divide other assets (as opposed to pensions) do that. If you have to divide retirement benefits, try to limit the division to the 401(k) plan. If you have to divide the pension, make sure you get a lawyer to do the QDRO for you.
Employment / Labor Attorney
401k plans are typically divided shortly after the QDRO is processed but pension plans are more complex in their rules. The answer to your question depends both on the language of the DRO and the plan rules.