Articles Posted in Retirement

Written by: Lenorae Atter, Attorney at Law

1150888_egg___.jpgRetirement accounts in our economy can be up and down, but one thing remains the same, in a Florida divorce your retirement that has been contributed to or earned during the marriage is one-half your spouse’s. Divorce in Florida is based on a premise that everything collected, including assets, debts and retirement accounts are going to be split equally between the parties. The concept is known as equitable distribution and it’s different in Florida than in some other states.

In some states, if both parties have a retirement account, regardless of value, then each take his or her own. In Florida, regardless of whether an account exists or should exist, the value of the accounts is what matters. If the Husband has a 401k with approximately $50,000 and the Wife has a 401k with an approximate value of $150,000, then their combined retirement is $200,000 (if all was contributed to and collected during the marriage. So, the court will look to split the $200,000 between the parties and the Wife’s account may be depleted by $50,000 and rolled into the Husband’s account to may his total $100,000 and her total $100,000.

1020934_retirement_money.jpgRetirement benefits are often a combination of employee and employer contributions during ones job. The retirement benefits are normally grown through the length of employment, and if an employee is married during his/her employment, then the contribution he/she is making is actually a marital contribution for purposes of a Florida divorce. As a divorce lawyer in Jacksonville, Florida, I have clients that are uncertain if they actually will get any type of retirement benefits if they were to divorce, and sometimes they even postpone divorce due to their fear of their financial futures. To best understand your rights and options as they relate to a divorce, property division and retirement separation, you should speak with a divorce attorney in your area.

In a Florida divorce, the property, including retirement funds, are to be equitably distributed between the parties. However, nonmarital assets are not divided in the divorce because they are considered the property of the spouse that brought them into the marriage. How that plays out with retirement is that if you are married for 10 years and you work for 10 years at the same company before the marriage, then only 10 years of your retirement may actually be divided during the divorce proceedings.

In Florida law, there are mandatory disclosure requirements, which require both parties to provide copies of documents related to bank accounts, IRA, 401(k)s, etc. The reason for this disclosure is so that the proper funds can be disbursed between the parties. A true accounting of your 401(k) can make it easier to guarantee that the correct amounts of funds are actually divided in the final divorce order. The rules governing this division of retirement funds can be found in Florida Statute 61.076.


Is Your Spouse’s Retirement Fund Subject to Equitable Distribution in a Jacksonville Divorce? Yes. The Florida Statutes and case law is clear that all marital property is subject to equitable distribution. In dissolution of marriage proceeding, the Jacksonville court will request a list of both parties’ assets (and liabilities). The assets that were acquired during the marriage as well as any increased value of the assets during the marriage due to marital funds or marital efforts are considered marital property.

A retirement fun or pension plan is money that is set aside for an employee after he/she is no longer working. A pension plan is defined as deferred compensation. Both the employer and employee contribute to the fund during the course of the employee’s employment. A spouse’s income during the marriage is subject to equitable distribution, so a spouse’s pension plan is also subject to equitable distribution.

Equitable distribution is the process of how a Jacksonville judge will divide marital property during a divorce. The objective of equitable distribution in Florida is to distribute the spouse’s property fairly between the two parties. Under Florida law, the court must first decide the equitable distribution of marital assets and liabilities before it makes any spousal support determinations. The court will first determine which property is “marital property” and which property is “non marital properly.”

Written By: Lenorae C. Atter, Attorney

Wood, Atter & Wolf, P.A.

53621_calculator_v3.jpgFlorida divorces and the pensions of the parties are controlled by Florida Statute 61.076, which gives equitable distribution for any vested or nonvested monies, benefits and rights received during the marriage. For example, if the wife has worked for a company for 20 years and has a pension for those 20 years of work, then husband is entitled to receive one-half of the portion of the pension created during the marriage. If they were married for 10 years, then he receives one-half of the 10 years worth of pension. Often, this is a calculation that has to be completed. Even though the final judgment or order of the divorce will state what the division is and how it is to be divided, the receiving party must also have a Qualified Domestic Relations Order (QDRO) entered by the court for the bank or 3rd party to divide the pension properly.

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