Retirement savings are arguably some of the most complicated assets to divide in an Indiana divorce. Many spouses are unsure of how to approach this difficult topic and how the courts will divide something that both of them have spent a considerable amount of time building up.
However, retirement plans can be part of a pre or postnuptial agreement. Spouses can clarify to the courts that their 401(k) savings should count as separate property. They can also add some guidelines if there is a clear imbalance in their earnings so the court knows how much one spouse should give to the other. Since these details can have a significant effect on each spouse’s future after a divorce, you and your spouse need to keep the following factors in mind when creating the agreement:
Not only should you and your spouse discuss how your respective incomes will affect retirement, but you both also need to bring up any employer-sponsored retirement plans. The less-earning spouse needs to be careful when going over the details on whether they will be part of the employer-sponsored plan or not. If the spouses do agree that they are both entitled to the breadwinner’s benefits, then the less-earning spouses should still fill out a Qualified Domestic Relations Order (QDRO) to ensure they receive their proper share of the plan.
It might be difficult for younger couples to include retirement assets in a prenuptial agreement since they are still early in their careers. They may need to wait a few years to settle into their jobs before defining how their retirement plans should get split into a postnuptial agreement. Even though Indiana courts typically count premarital property as separate, older couples should still include their retirement plans in their prenuptial agreements to avoid any potential risks.
If you and your spouse are planning to have a child in the future, you should think about how that will impact your retirement plans. Will one of you have to quit their job to look after the kid? The court will still try to make sure the asset division is equitable, so they may dismiss an agreement if it appears too one-sided.
Including retirement assets in a pre or postnuptial agreement can be a complicated process. If you want to make sure that your plan looks fair and legitimate, contact an attorney who has experience with family law issues in Indiana.