Under Florida law all vested and non-vested benefits, rights, and funds that accrue during the marriage are marital assets subject to equitable distribution during a divorce. This law applies to any 401(k), pension, Individual Retirement Account (IRA), annuity, or Deferred Retirement Option Program right (DROP) that is acquired or accrues during the course of the marriage.
If a pension or retirement fund is a marital asset, a Court will order a Qualified Domestic Relations Order (QDRO) that instructs the plan administrator to divide the fund according to the divorce decree. One or both or the parties will be responsible for paying for the preparation of the QDRO by a qualified CPA. The non-employee spouse is usually entitled to the same rights under the plan as the employee spouse, such as cost-of-living adjustments and early withdrawal options, and is eligible to receive his or her share of the ex-spouse’s benefits when the ex-spouse is entitled to receive them.
If a party did not contribute to his or her retirement account since the date of marriage, the account will not be considered a marital asset. Likewise, contributions made to a retirement account both before the marriage occurred and after it dissolved are the separate property of the employee who made the contributions and are not considered marital property. When determining what portion, if any, of a retirement account is not a marital asset, the courts will consider the length of any marital separation and whether marital “efforts” or earnings were use to acquire the benefits. Any party that argues that all or part of his or her retirement account should not be considered marital property has the burden of proving its non-marital status.
If a party is retired and collecting on a retirement account, those funds may be considered income instead of assets. In this situation, it may be considered in alimony and child support calculations, but will not be divided in equitable distribution.
If you have any questions about alimony or any other issue related to a Tampa divorce contact the Bowes Law Group by clicking here or call us at (813) 421-4422 to schedule a consultation.