So, If a divorce where to happen, my current husband would be entitled to a portion of my Q-DRO awarded me some 20 years ago? A:
No, it would not work that way. Your right to receive a portion of first husband's retirement entitlement, awarded to you 20 years ago at the time of your divorce from husband # XXXXX is a property asset acquired prior
to your marriage to husband # XXXXX (rather than a property asset acquired during
your marriage to husband # XXXXX). And this would be true even if your actual receipt of your court-awarded share of H #1's pension or retirement benefit is not actually received by you until three years from now (while you are married to H #2). Q:
Would that award have been earning interest all these twenty years?A:
Maybe yes, maybe no. I cannot provide an informed answer to this question until and unless you provide some additional information. Specifically, was the Plan a defined BENEFIT (pension) plan? Or is it a defined CONTRIBUTION plan? Further, exactly and specifically what is the wording of the divorce judgment regarding the division of the Plan? Did it award you 50% as of a specified date (such as the date of dissolution of marriage
)? And did it include language saying that the amount of the award would be "adjusted by earnings, gains and losses thereon from the date of divorce to the date of account division" (or words to that effect)? It would be most helpful to also know what particular plan (official legal name of the plan) was involved?Q:
Could it also be said that when my current husband retires in 4 weeks with a pension worth $500,000,00 and then put immediately into an IRA. Would I be entitled to any of those funds?
A: Yes, in the event of a divorce, most likely. Assuming you have been married to current husband for at least one year as of the time he retires in 4 weeks, he will not be allowed to take his pension worth $500,000,00 and immediately put it into an IRA without your first giving WRITTEN CONSENT (notarized signature) waiving your spousal right to a "joint and survivor" form of pension pay-out. If you give such consent, the Plan administrator will then be permitted (and required) to follow his directions regarding a rollover of the present actuarial value of his pension (assuming this is a defined benefit plan as distinguished from a defined contribution plan) to an IRA as he designates.
Once rolled over to his IRA, you would have no surviving spouse rights to his IRA if he died while married to your UNLESS you were his designated IRA beneficiary. In the event of a divorce, the money in his IRA, to the extent acquired during the marriage, would be considered under Kansas law as a marital property asset subject to equitable division incident to dissolution of marriage.
A large pare of my law practice involves drafting and processing of QDROs
, so I have a little bit of knowledge about how these things work.