In divorce, one of the most highly contested issues is property division. What you think may be yours may in fact belong to both you and your spouse, and dividing up the property may be complicated. This is particularly true when it comes to retirement accounts. If you worked throughout your marriage, or for the majority of you’re the time, you are probably wondering what happens to your retirement after your divorce.
In order to understand how your retirement accounts will be divided, you must first understand how property in Virginia is typically separated during divorce.
In Virginia, property is categorized into three different types: separate property, marital property and hybrid property.
Separate property is not divided amongst you and your ex-spouse, it is entirely yours – with few exceptions. Virginia law defines personal property as: (i) all property, real and personal, acquired by either party before the marriage; (ii) all property acquired during the marriage by bequest, devise, descent, survivorship or gift from a source other than the other party; (iii) all property acquired during the marriage in exchange for or from the proceeds of sale of separate property, provided that such property acquired during the marriage is maintained as separate property; and (iv) that part of any property classified as separate.
For example, the car you purchased with your own money prior to getting married is your own separate property.
Basically, if you owned it before your marriage, maintained it as your own and/or received it as a gift from someone other than your spouse, it’s your own separate property.
Marital property, on the other hand, is property acquired during your marriage. Marital property may include property titled in both you and your spouse’s names, property titled in your name alone or your spouse’s name alone, property acquired by both you and your spouse during the marriage that is not separate property, and the marital portion of hybrid property. Courts presume that marital property is jointly owned by you and your spouse unless you can present evidence to the contrary, and will usually be split evenly at divorce.
Hybrid property is both marital property and separate property. Some examples include income earned from separate property, retirement and pension accounts, as well as commingled assets. For example, if you used pre-marital funds to make the down payment on your marital home that appreciates in value during the marriage, the real estate will likely be considered hybrid property.
Retirement accounts and pension accounts are considered hybrid property, if they contain income you received prior to the marriage and/or after the date of separation. If so, then the amount you accumulated during your marriage will be considered marital property, and your ex-spouse will likely share in that portion.
For instance, suppose you have been building your retirement account by working for the same employer for 25 years – 5 years prior to getting married through you and your spouse’s recent separation. When dividing this account at divorce, 20 years of monetary contributions (plus interest) will be subject to equitable distribution. So if your spouse is awarded 50% of the hybrid value, they will receive their marital share (50%) of 10 years’ worth of contributions.
If your retirement account(s) are divided in divorce, your family law attorney can help you obtain a special order form the judge to ensure you do not incur an early withdrawal penalty or policy limit.
If you are considering or going through a divorce, whether or not you have retirement accounts at stake, you should speak with a qualified family law attorney at the DiPietro Family Law Group. Our attorneys can review the facts of your specific situation and will fight for your rights and the outcome you desire. We have decades of experience representing clients in all types of family law issues and are here to help you!
Call us today to schedule a consultation at (888) 530-4374.