Pensions and retirement plans are assets if acquired during the marriage regardless of which party in the marriage earned the asset. All assets acquired during the marriage are subject to equitable distribution, including pensions and retirement accounts. A marriage is a partnership in which both parties contribute to the joint acquisition of assets. For example, a stay-at-home parent may have the lion’s share of the household and child rearing responsibilities, which permit the parent working outside the home to pursue a successful career and the acquisition of those retirement savings. Therefore, each party will share in the distribution of the pension, 40l K, IRA, or any other retirement account. Any accumulation of pension or retirement account prior to the date of marriage as well as any earnings or growth on that portion of the asset are excluded from distribution. Any accumulation of pension or retirement account after the date of filing of divorce or some other agreed-upon or judicially-determined date as well as any earnings or growth on that portion of the asset are excluded from distribution. Equitable distribution does not mean that all assets acquired during a marriage are divided equally, but rather that assets will be distributed equitably. Retirement account distributions, whether by way of rollover or Qualified Domestic Relations Order (QDRO), are non-taxable events.
Michele E. D’Onofrio is a family lawyer in Warren, New Jersey and a partner with the law firm of Shimalla, Wechsler, Lepp & D’Onofrio, LLP.