The division of assets in a divorce is often one of the most contested and emotional issues. Assets can range anywhere from bank accounts to real estate. The assets acquired during the marriage are considered marital property and subject to division between the parties, regardless of who holds a title or whose name is on an account, with a few exceptions. 

This is true, too, for any money put into a retirement account during the course of a marriage. These funds are marital property and subject to division, whether the account is a pension, 401k, IRA, or another retirement account. In contrast, any money put into a retirement account prior to the marriage or after the divorce is not marital property and, therefore, is not subject to division.

So how are retirement accounts actually divided? Generally, the Courts will award a certain percentage of the marital portion of each party’s retirement account to the other party. Often times it is a 50/50 split, but can be a different allocation depending on a variety of circumstances. If the court is awarding each party 50% of the marital portion, and for example, if John has an IRA with $100,000 in it, $50,000 of which accrued during the marriage, John’s wife would be entitled to one-half of the $50,000 or $25,000. In certain circumstances where the parties have substantially similar retirement amounts, each party can waive their right to the other’s retirement, and each keeps their own. In other instances, one party may choose to keep their entire retirement account in exchange for receiving maintenance — formerly, alimony — or other assets accumulated during the marriage.

At the time the divorce is finalized or after, the parties will prepare what is called a Qualified Domestic Relations Order (QDRO). This order will divide the retirement accounts pursuant to the terms of the divorce. The QDRO is entered by the court, sent to the party’s employer or the company that handles their retirement account, and the money is then divided accordingly.


If you have questions about the divisions of assets between you and your spouse or ex, call Greenberg & Sinkovits at (312) 905-3013 for a consultation. Our attorneys are well-equipped to help you navigate the asset and retirement division.