YES, there is a formula. It is complex. A QDRO (Qualified domestic relations order) would be prepared and submitted to the court. Such QDRO would divide the marital portion of the account. There are many companies that do this, but my office uses QDRO consultants, out of Medina. They are experts in the industry, and charge about $400 to draft the QDRO. You cannot do this yourself, and I as an attorney will not even draft them, or trust another attorney to draft one. Good luck.
The above information is not, nor intend to be, legal advice. You SHOULD consult an attorney for specific advice regarding your individual situation. Based on this response no attorney-client relationship has been formed. If your matter is in Cuyahoga County or surrounding counties, we invite you to contact us. Please visit our website at www.kirnerandboldt.com. Contacting us does not create an attorney-client relationship. Please do not send any confidential information until such time and attorney-client relationship is formed. Attorneys in this firm are only licensed to practice in the state of Ohio and have no specific information as to the laws and rules of other states and none of the information provided is intended to be applied to the laws of other states.
The first issue is to determine the type of retirement involved. One type would be where a monthly benefit is paid, such as a pension or STRS, OPERS, etc. These require one type of calculation in order to establish the marital portion of the retirement or the marital value of the retirement. The other type of retirement asset is where there is a certain amount held in behalf of the retiree. This would include deferred benefit accounts, retirement savings accounts, 401(k) accounts, etc. The marital portion of these are based upon the portions accumulated during the marriage vs the portion accumulated before the marriage.
As noted by Attorney Kirner, the determination of the marital portion of either of these is a specialized determination. What you can do to facilitate the process is to obtain as much information, including statements, and turn the info over to your attorney. Let them take it from there. Retirement assets are often the most valuable component that is divided in a divorce – do not put an appropriate division at risk by trying to save a few dollars in legal fees.
IMPORTANT LEGAL NOTICE: Mr. Piper's response set forth above is not legal advice and it does not create an attorney-client relationship. Mr. Piper's responses to all questions posted on AVVO are intended to provide general information based upon the his understanding of the facts stated in the question, and are for the general educational purposes of the public, not any specific individual. Also, a particular case may involve additional facts and circumstances which might invalidate some or all of the concepts provided in this answer and therefore you should not rely upon this answer in any individual situation. In order to offer legal advice about this or any similar situation, a qualified attorney would likely need to consider many factors not stated in the question and would need to question the potential client in order to clarify the specific facts operable in that case. If you would like to obtain specific legal advice about this issue, it is recommended that you contact an attorney in your state. Mr. Piper is licensed to practice law in the State of Ohio, and may be contacted directly via email at: firstname.lastname@example.org.
I agree with Mr. Piper and Mr. Kirner. Pensions & retirement assets are very specialized and require drafting of appropriate court orders and submission to the entity administering them for their approval. This area is extremely complex both legally and factually. Do not attempt to do this yourself! I recommend hiring an attorney to handle your divorce. Your attorney will guide you regarding what documentation to obtain from these entities, as well as other areas such as spousal/child support and property division. I have drafted the documents mentioned by my colleagues, but charge extra. They are time consuming. There are no standard forms that can be used with any degree of confidence or safety. Each entity approaches these in their own unique way too.
The three attorneys who have answered so far have accurately set out the most important facts about retirement accounts. I only want to add the following: If you are negotiating a the division of assets and it is anticipated that you will use a QDRO to divide the 401K or the pensions, and there are other assets such as equity in a house, cash or savings not in a retirement vehicle, make sure you do not trade pre-tax dollars in a retirement plan for after tax dollars in a non-retirement asset. This gets very tricky when dealing with net present values of income streams and marital portions of the various retirement plans. You need an experienced divorce attorney to help guide you to the best settlement.
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