It would be an understatement to say that these are trying financial times.  Real estate values are done, retirement assets are down, stock accounts are down, many people have lost jobs and many other feel lucky to still have their job, albeit earning less than they once did. 

In the past, the proceeds of the sale of of the marital home was a solution to many post-divorce cash flow issues, including down payments for new homes, getting a new car and paying the lawyers and experts in a case.  With the decline in property values, many people are facing situations with negative equity or much less equity to divide. 

What I learned in the last few years, and what I have found that many attorney and many accountants do not know is that a spouse receiving a share of the other spouses retirement account in divorce (IRAs and 401ks) can avoid the early withdrawal penalty if they take with withdrawal "incident to a divorce."  Many people think  and I used to be one of them, that if you liquidated retirements assets, you had to pay the 10% penalty. 

However, provisions of Internal Revenue Code sections 72, 401 & 408 (as well as the Treasury Regulations), allow a person to avoid the penalty if the take the cash at the time of the transfer.  If the transfer is in to an IRA account and then they try to get the cash, there will be penalty.  The tax in either instance still has to be paid. 

I suggest that parties can be creative with this to get money out for both of them, if they are cooperative, transfer the money to the non-tiled spouse which will then be divided, and they agree on a fair division of the taxes. 

In any event, if the rainy day is at the end of the divorce, retirement assets to be transferred incident to a divorce could mean money for that rainy day.

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