Is a retirement fund marital or separate property in a divorce?

On Behalf of | Jun 16, 2020 | Divorce

Couples going through divorces in Oklahoma generally have to either reach agreements about how they will split up their shared assets or have the courts intervene and make decisions about the distribution of their possessions and debts.

Whether you are trying to negotiate directly with your spouse or planning a strategy for a litigated divorce, knowing how Oklahoma handles your possessions can give you a better idea of how they will handle those assets and debts in a divorce.

With the possible exception of the marital home, retirement assets are often some of the most sought-after assets in a divorce. They also are often the cause of confusion, as people may have unrealistic or inaccurate expectations about retirement funds during a divorce.

Do spouses generally have to split retirement funds?

Oklahoma is one of a majority of states that applies the equitable distribution standard to contested divorces. If spouses don’t have a pre-existing document that guides the divorce, the courts will look at the marriage itself and the family’s circumstances to try to create an equitable or fair way to split up marital assets. Whether or not a retirement account winds up divided depends entirely on whether the courts view the account as marital or separate property.

Is your retirement account marital property?

If your name is the only name on the account, you might want to assume it means that your retirement account is your separate property. However, it is not the name of the account holder that matters so much as what assets the account holder used to fund the account.

If you fund the account with separate property, such as income designated as separate in a prenuptial agreement or assets or income acquired prior to marriage, that amount of the retirement account will be separate property in the divorce, in most cases.

However, deposits made from income earned during your marriage will likely be divisible in a divorce, as your income is typically shared or marital property. A close review of your family’s situation and your account records can give you a better idea of how much of the account is subject to division and how much you can claim as separate property.