I am in the midst of a separation and my spouse is requesting 50% of all marital assets determined by a QDRO. My question is, I rolled over a 401K from an old employer into a traditional IRA during our marriage. All proceeds that were contributed to this 401K prior to the rollover were made “pre-marriage.” Once it was rolled into a traditional IRA, I did not make any more contributions. Based on this situation, would my spouse be eligible for half of these assets?
Any retirement that was earned prior to the date of marriage is considered separate property and not subject to division. Any contributions to this IRA that were made during the marriage (and it sounds like there were none) would be considered marital property and could be divided evenly.
My soon to be ex-husband and I filed our separation in Oct 17’ and used the Rosen online to prepare our divorce documents. I have all the divorce documents done, but am uncertain how to file the QDRO appropriately with the online forms through Rosen. Do I need a separate QDRO or do it at same time as the divorce? Do I add it to the complaint or do it separately?
Is it possible to just add wording to complaint?
such as:
2. That the Court enters the order agreed upon by the parties equitably dividing and distributing of the Plaintiff’s interest in Fidelity Individual Retirement Account, number XXXX
background: My 401K through Fidelity (which I will be giving to him 100%) has the following requirement on the Transfer Due to Divorce form.
A copy of the divorce decree or legal separation order signed by a judge must be included. Note: The decree or order must include language referencing the account(s) and amounts being transferred. If not, the settlement agreement incorporated or referenced in the decree or order that references the division is also required
You will need to have included a claim for equitable distribution of retirement accounts in your claim for absolute divorce. If you do not and the absolute divorce is granted, the courts will no longer have jurisdiction to enter QDROs.
A QDRO is a separate court order from the absolute divorce judgment but they can both be entered at the same time.
The language you cite would go in the QDRO, not the absolute divorce judgment.
Anna Ayscue
Attorney with Rosen Law Firm Cary • Chapel Hill • Durham • Raleigh • Wake Forest
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