We have all heard how the current economy has been taking its toll on the economics of divorce. Where home equity and stock accounts was once a source income, I have had many clients look to their retirements as a resource for liquid income post divorce.  Many times, the issue of access to retirement funds comes up in the negotiation of a divorce settlement. As an example, if the marital home has fallen in value, a spouse may seek to liquidate a retirement account in order to have enough for a down payment for a new house post divorce.


In the case of a 401(k) or IRA, this may be a realistic source of funds as long as the consequences of taking an early withdrawal, including penalties are taken into consideration. However, many people are under the mistaken impression that as long as you are willing to pay the penalty, the money can be taken out by a former spouse at any time. Such is not necessarily the case.

Many, if not most traditional pension plans provide that there can be no withdrawal until the stated retirement age in the pension plan itself. So, even if you know that you will have funds at retirement age, you may not be able to spend them until a time in the future. Others provide that a former spouse cannot receive the benefit until the time the time that your former spouse begins to receive benefits, or at least becomes entitled to benefits.


Seem obvious? Well, in recent weeks I have had no less than three clients who I did not represent in the divorce or the negotiation of the settlement agreement who thought that they would be able to access funds immediately, and in one case, negotiated a lower amount based upon that assumption. Lesson to be learned? Find out about the rules of your soon to be ex’s retirement and your rights as a former spouse at the beginning of the divorce process. This can easily be done by an attorney through the use of a subpoena. Find out now what your rights are and when those rights come into being to access the money post divorce so you can make an informed decision in the negotiation process.    If the early liquidation of the asset is likely, make it a part of the negotiations. And don’t forget the costs associated with the early withdrawal of any account. A $100,000 401(k) is not really worth $100,000 after consideration of taxes and penalties.