-

Jump to content



Photo
- - - - -

Any tax code gurus out there?


This topic has been archived. This means that you cannot reply to this topic.
1 reply to this topic

#1 of 2 OFFLINE   Michael_K_Sr

Michael_K_Sr

    Screenwriter

  • 1,345 posts
  • Join Date: Aug 14 2005
  • Real Name:MichaelK
  • LocationChicago 'burbs

Posted January 22 2006 - 04:13 AM

I have a friend that is going through a divorce and it's supposed to be finalized next month. Part of the settlement is that she has to give 50% of her 401K proceeds to her soon to be ex-husband. Now I know that early withdrawls on a 401K result in taxes being paid on the withdrawn amount as well as a 10% penalty. Does the tax code provide any relief from this in the event of a divorce? For instance, would the ex-husband be responsible for the taxes and penalty?

#2 of 2 OFFLINE   CameronJ

CameronJ

    Stunt Coordinator

  • 244 posts
  • Join Date: Feb 28 2002

Posted January 22 2006 - 05:18 AM

Nope - she would not be responsible. The assets in the 401(k) plan actually get transferred into an account for the ex-spouse, who then may be able to withdraw the money. If the ex-spouse is able to withdraw the money, he is then liable for penalties and taxes (i.e. the withdrawal gets reported under his SS#, not the ex-husband's).

It's important to note that many plans would not allow him to withdraw the money unless she has a "qualifying event" (retirement, etc.), although plans now are commonly including the ability to make in-service withdrawals.

Edited to add:
Make sure that the assets are transferred using a Qualified Domestic Relations Order ("QDRO"), and that the divorce settlement stipulates that she is responsible for taxes and penalties. I have seen divorce settlements that require that the employee withdraw the amount and then give it to the ex-spouse, which is then taxable to the employee. Usually this happens when the employee has a moron for an attorney who doesn't understand the implications of this type of transaction.