Any tax code gurus out there?

Discussion in 'After Hours Lounge (Off Topic)' started by Michael_K_Sr, Jan 22, 2006.

  1. Michael_K_Sr

    Michael_K_Sr Screenwriter

    Aug 14, 2005
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    Chicago 'burbs
    Real Name:
    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 Now I know that early withdrawls on a 401K result in taxes being paid on the withdrawn amount as well as a 10% penalty.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. CameronJ

    CameronJ Stunt Coordinator

    Feb 28, 2002
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    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.

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