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The Divorce Encyclopedia

Term Definition IRA - an individual retirement account, which must be "rolled over" in a divorce to avoid a tax penalty.
Application in Divorce An IRA is one of many retirement accounts available to individuals.

These accounts are tax-deferred or tax sheltered and include IRA, SEPs (which are Simplified Employee Pension Plans), Keoghs, ESOPs, 401(k)s, 457s and 403(b)s.

An IRA is a tax-deferred asset.

Its transfer is tax-free if it is transferred directly -- that is, rolled over -- to a nonemployee spouse’s IRA. Divorcing couples who transfer IRAs as part of the division of marital property should state that the transfer is being made "trustee to trustee" in their separation agreement. Thus, QDROs are not needed to divide IRAs, even if the IRA is a rollover from a qualified retirement plan.

A nonemployee spouse who takes the money directly is subject to a 20 percent withholding by the I.R.S.; therefore, these accounts must be rolled over when they are distributed as part of a divorce.

Normally, an individual may begin withdrawing from a IRA at 59 1/2 and must begin withdrawals at 70 1/2.

Early withdrawal carries a 10 percent penalty, but the penalty is waived if the nonemployee spouse is younger than 59 1/2 and the transfer is related to divorce.

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