Photo courtesy of S. Charles on unsplash.com.
Divorcing couples often face the need to split up some retirement account assets. This can be done from a retirement plan such as a 401(k) or 403(b), or from an IRA. Depending on which type of account you’re splitting, the rules are very similar but are referred to by different names. For a qualified retirement plan (401(k) or 403(b) plan), the operative term is Qualified Domestic Relations Order or QDRO (cue-DRO). For an IRA, the action is known as a transfer incident to a divorce.
We discussed the QDRO in several other articles, so we’ll focus on the transfer incident to a divorce in this article.
Transfer Incident to a Divorce
When an IRA is to be divided due to a divorce, the divorce decree will specify this as a transfer of IRA assets incident to a divorce. With this magical language, the original owner of the IRA is allowed to direct all or a portion of the IRA account to his or her ex-spouse’s IRA. This can be done by re-titling the original IRA (if the account is to be fully transferred) or by directing the custodian to transfer a portion of the account to an existing or new IRA in the name of the receiving spouse. The transfer can be done in shares of holdings from the original account, or in cash.
When the transfer occurs, although a distribution has technically occurred from the account, there will be no tax owed by the original owner. In addition, if the receiving owner of the funds leaves the money in the receiving IRA, there will be no tax at the time of the transfer on the funds. Once the money is removed from the receiving account, ordinary income tax would be owed as usual, and perhaps an early withdrawal penalty unless an exception applies.
The major difference between a QDRO and a transfer incident to a divorce is that a transfer incident to a divorce does not allow for the receiving ex-spouse to receive the funds penalty-free if not rolled over into a receiving IRA. With a QDRO, although the funds are taxable to the receiving ex-spouse, there is no 10% penalty if the funds are withdrawn prior to his or her reaching age 59½. If the originating account is an IRA, the 10% early withdrawal penalty will apply in addition to ordinary income tax.
Sterling Raskie, MSFS, CFP®, ChFC®
The latest in our Owner’s Manual series, A 401(k) Owner’s Manual, was published in January 2020 and is available on 
A Medicare Owner’s Manual, is updated with 2020 facts and figures. This manual is available on 
Social Security for the Suddenly Single can be found on Amazon at 
Sterling’s first book, Lose Weight Save Money, can be 
An IRA Owner’s Manual, 2nd Edition is available for purchase on Amazon. Click the link to choose the 
Jim’s book – A Social Security Owner’s Manual, is now available on Amazon. Click this link for the 
And if you’ve come here to learn about queuing waterfowl, I apologize for the confusion. You may want to discuss your question with Lester, my loyal watchduck and self-proclaimed “advisor’s advisor”.
My ex-husband is supposed to pull money from his retirement account to pay me back child support. The court signed off on our mediation settlement agreement which states that a QDRO will be used to make this happen. I need to have access to the funds immediately to pay back money I borrowed from family.
As it turns out, his money is in a ROTH IRA. As I read your article here, it seems that we can’t have a QDRO drafted because he is withdrawing from an IRA, and if I use the money now, I will be hit with both regular taxes (which I’m fine with), but also the early withdrawal penalty because I am only in my 40’s.
Do I read this correctly? Is there any way around this?
You’re right, a QDRO is not appropriate if the money to be split is in an IRA. This is generally handled by a “transfer incident to divorce”, which is a separate order.
Being that the money is in a Roth IRA however, if the money withdrawn is not more than the original contributions to the account there may not be any tax consequences to the withdrawal.
Hi there,
what if instead of a Roth IRA the funds are coming out of a traditional IRA? do I need to pay the 10% penalty?
Manu thanks in advance,
Alba
If the funds are not rolled over into an IRA (or eligible employer plan) and no other exceptions apply, you will be assessed the 10% penalty if you take the withdrawal before age 59 1/2.