Last updated on March 5, 2025
To help ensure accuracy, this page was written, edited and is periodically reviewed by a knowledgeable team of legal writers per our editorial guidelines. It was approved for publication by founding attorney Samuel Siemon, who has amassed extensive experience as a Georgia family law attorney. Our last modified date shows when the page underwent a review.
Dividing Retirement Plans In A Georgia Divorce
Many people who go through the divorce process are surprised to find out that they have to share their pension plan, 401(k), IRA and other retirement accounts with their spouse. Retirement savings are often the most significant assets a person owns.
At The Siemon Law Firm Divorce and Family Law Attorneys, P.C., our divorce and retirement lawyers are here to protect your interests if you are going through or planning a divorce. We represent men and women throughout Atlanta and Northern Georgia.
Isn’t My Retirement Account Mine?
Even though your retirement account is in your name alone, it is considered marital property. In Georgia, all assets accumulated after your marriage are marital property and are subject to equitable distribution.
For many people, retirement assets will consist of two parts:
- The portion accumulated before your marriage is separate property and doesn’t have to be shared with your spouse.
- The portion accumulated after your marriage is marital property and must be divided according to the law of equitable distribution.
What Does “Equitable” Mean?
In most cases, “equitable” will mean 50-50, but a judge could determine that an unequal distribution is equitable if there is income disparity between you and your spouse or fault grounds in the divorce.
When negotiating an equitable division of marital assets, you and your spouse can agree to exchange assets. For example, you can give your spouse your share of the marital residence in exchange for your spouse’s share of your 401(k) account.
Division Of 401(k) Plans
Over the years, 401(k) plans have become an increasingly popular way for Americans to plan and save for the future. These defined-contribution pension accounts can hold the majority of a person’s retirement savings. This is among the reasons why a divorce can be such a threat to financial security.
The division of a 401(k) plan is accomplished by means of a qualified domestic relations order (QDRO). This special court order will generally divide assets without any tax liability or penalties. However, tax law changes frequently, as does Georgia’s family law. It is important to consult a qualified attorney for up-to-date advice about dividing 401(k) plans in divorce.
Division Of IRAs
For many people in Atlanta and Northern Georgia, their individual retirement account (IRA) represents years of hard work and hopes of future financial stability. In divorce, therefore, it is natural for spouses to be concerned about keeping as much of its value as possible. However, IRAs are different from other types of accounts.
With regular savings or checking accounts, a couple can typically withdraw a large sum during the property division process without incurring a significant penalty. However, IRAs are a unique type of retirement account, so dividing them will be different.
Attempting to divide an IRA on your own can be risky. Removing a large sum from an IRA could result in hefty early withdrawal fees and tax obligations. Therefore, it is critical to work with a skilled lawyer.
A well-structured transfer of funds can allow for an IRA division that doesn’t trigger unexpected negative tax consequences. It is important to ensure the divorce decree contains the right information, including the amount and date of the transfer. Working with skilled legal tax and accounting professionals in Georgia can help you prevent value loss and avoid costly mistakes when it comes to IRA transfers.
Dividing Teacher Retirement Benefits
In some situations, teachers’ retirement benefits are not divisible by law. This does not mean that such benefits cannot be divided during divorce, it only means that the state will not take on the responsibility. In many cases, the school district simply lacks the time and resources to divide teachers’ retirement accounts and pensions.
Given this, if you or your spouse is a Georgia teacher and you are going through a divorce, it is important to seek the assistance of an experienced property division attorney to help fairly divide this asset.
One option is to offset teachers’ retirement accounts with other marital assets. This means that the teacher will keep his or her retirement benefits and the other spouse will receive other assets of equal value.
If there are no other assets (such as real estate, bank accounts, etc.) to equal the value of the school district benefits, you could form an agreement to divide payments. Each time the teacher receives a pension check, for instance, he or she can give the ex-spouse part of that money.
Contact Our Atlanta Divorce Attorneys Today
Whether you are planning for a divorce or you need to respond to a divorce filing by your spouse, our lawyers are here to advise you. Please contact us today and arrange a personal, discreet consultation. Call 770-888-5120. We have four convenient office locations in Alpharetta, Atlanta, Cumming and Marietta.
