When couples decide to divorce in Illinois, they have two options: a contested divorce or a non-contested divorce.
April 5, 2023
How are pensions divided in an Illinois divorce
Divorce is a difficult and emotional process, and it can become even more complex when dealing with issues such as pension division. In Illinois, pensions are considered marital property and are subject to division in a divorce. However, the process of dividing pensions can be complicated, and it is important to understand the laws and regulations surrounding this issue. In this blog post, we will discuss the pension issues that can arise in an Illinois divorce and how to address them.
What is a Pension?
A pension is a retirement savings plan that is typically offered by employers. It provides a set income to the retiree during their retirement years. Pensions are considered marital property if they were earned during the marriage. This means that they are subject to division in a divorce.
Types of Pensions
There are two main types of pensions: defined benefit and defined contribution. A defined benefit plan provides a set amount of income to the retiree, while a defined contribution plan, such as a 401(k), allows the retiree to invest money into the plan and receive a payout based on the return on investment.
Dividing Pensions in an Illinois Divorce
In Illinois, pensions are divided through a process called equitable distribution. This means that the pension is divided fairly, but not necessarily equally, between the spouses. The court considers several factors when dividing pensions, including:
The length of the marriage
The contributions each spouse made to the pension
The age, health, and earning potential of each spouse
The value of any other marital property
Any prenuptial agreements that may exist
Once the court has considered these factors, it will divide the pension in a way that it deems fair.
Before a pension can be divided, it must be valued. The valuation process can be complex, and it is often necessary to hire a financial expert to determine the value of the pension. The value of a pension is determined by several factors, including the type of pension, the length of the marriage, and the contributions made to the pension.
Once the pension has been valued and divided, a Qualified Domestic Relations Order (QDRO) must be prepared. A QDRO is a legal document that outlines the terms of the pension division. It is required by the pension plan administrator to ensure that the pension is divided correctly.
A QDRO should be prepared by an attorney who is experienced in pension division. It is important to ensure that the QDRO is drafted correctly, as mistakes can lead to delays or even the loss of pension benefits.
Issues to Consider
There are several issues that should be considered when dividing pensions in an Illinois divorce. These include:
Taxes: Taxes can be a significant issue when dividing pensions. The spouse who receives the pension may be required to pay taxes on the income, while the spouse who gives up a portion of the pension may be able to avoid taxes by rolling the funds into an IRA.
Survivor Benefits: If the pension plan offers survivor benefits, the spouse who gives up a portion of the pension may want to ensure that they are still eligible for survivor benefits in the event of the retiree's death.
Early Retirement: If the retiree is planning to retire early, the pension may need to be divided differently to ensure that both spouses receive their fair share of the benefits.
Vesting: If the pension has not yet vested, it may not be considered marital property and may not be subject to division in a divorce.
Dividing pensions in an Illinois divorce can be a complex and challenging process. It is important to work with an experienced divorce attorney who understands the laws and regulations surrounding pension division. By understanding the issues involved and working with a qualified attorney, you can ensure that your rights.
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