Am I entitled to any of the growth in my ex husband's IRA?
My ex husband purchased an IRA and a Roth IRA prior to us getting married. He never contributed to them after the initial purchase, but they have grown over the years. Do I get half of the growth after our marriage date or is that considered separate property?
This is a great question. Retirement assets are split through a process called a Qualified Domestic Relations Order, or QDRO for short. This order will determine what assets should be delegated to the parties involved. However, it really comes down to your individual situation and what is set forth in the divorce decree. With that being said, you are typically entitled to half of the total balance, both pricipal and growth, that was accumulated during your marriage. Most states defer to a 50/50 split of assets between spouses during a divorce. Keep in mind any contributions and growth accumulated prior to marriage is left out of any of the calculations, unless otherwise determined by the decree. One of the unique traits to assets divided by QDRO is the accessibility without penalty. Typically, if you are not age 59 1/2 and take a withdrawal from a retirement account, you will be penalized 10% of your withdrawal. In the case of QDRO, the penalty is waived. A divorce attorney should be able to tell you the specifics of you situation and walk you through the state's requirements for assets in case of divorce. Hope this is of help! If you have any other financial questions, consult a fee-only financial planner.
Two laws on this that predominate:
- Nine States that are considered Community Property States: AZ, CA, ID, LA, NV, NM, TX, WA, and WI with Alaska an Opt in Community Property State. Under these States the law states, '......both acquire during your marriage while you and your spouse are domiciled in that Community Property State'.
- Other States are Common Law States: This is where an Estate Planning Attorney can better advise as in these States "No!" would be the answer to your question in most cases. Consequently, I have worked with Attorney's who specialize in Divorce litigations and and it seems that through Arbitration cases involving assets like the one you proposed the Arbitrator seems to follow Community Property Laws but AGAIN I would follow up with an Estate Planning Attorney.