Retirement Plan Characterization & Valuation

Retirement plans fall into two main categories: defined contribution plans and defined benefit plans. If a plan or part of a plan was earned during the marriage, that part will be characterized by the courts as community property. There may be issues as to when a retirement plan, or a portion of a retirement plan was earned. The determination by a divorce court of which part of a plan is community property will be determined by case law and will relate to the date of separation. The earnings, accumulations and losses relative to the community interest in a plan will be characterized by a divorce court as community property. Depending on the type of plan, a Qualified Domestic Relations Order (QDRO) may be required to distribute the non-employee’s share of a plan to him or her without income tax consequences. The QDRO is prepared by an attorney who specializes in this area of the law. If the plan is a defined benefit plan, the valuation is completed by an actuary. The benefits and/or assets in retirement plans are pre-tax and that fact is relevant as to how the community share of the plan fits into the overall settlement structure.