This woman wonders what will happen to her ex-husband’s $1 million retirement account

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Dear Moneyologist,

I have a question about my divorce situation. I went through a fairly amicable divorce. We will still see each other at family dinners from time to time. It’s a little awkward, but friendly. We share an individual retirement account but, while going through the divorce, my husband said he did not want to split his retirement account because it was just short of seven figures. He’s been saving forever and his reasoning was that he didn’t want to split it yet when it was so close to $1 million. A year has passed, the account is over $1 million, and nothing has happened.

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I do not think my ex-husband has bad intentions, but I am now worried. I personally believe he should have split the account during the divorce proceedings. It is an uncomfortable situation to bring up, but I believe it should be sorted out as soon as possible. Do you have any idea what the tax implications would be if he held onto the account together and split it in around 15 years when we both retire? Are we risking having to pay the gift tax by doing this? We may be less friendly in the future, and marry new spouses, etc.

Concerned Ex-Wife

Dear Ex-Wife,

Since your divorce is final, any changes to your current arrangement will be near-impossible, if you did not live in a community property state.

You cannot “share” an individual retirement account. You need to hold them separately under Internal Revenue Service rules. But there are so many missing pieces here. Has your ex-husband named you as beneficiary on his IRA? Does your divorce decree state that you are to receive the IRA, or at least part of it? If it is the latter, you need to make sure you are a named beneficiary on this account. Alternatively, establish whether or not you married in a community property state where the money contributed to the IRA during your marriage is automatically owned by both parties.

When it comes to family assets worth $1 million or more, people start acting funny, and not in a good way. Not everyone, in my experience, is quite so willing to divide them. In fact, some people go to great lengths to hide assets from spouses and soon-to-be former spouses. To withdraw the funds early would incur massive penalties. If your husband doesn’t want to make any changes on his retirement account — especially if you are not already named as a beneficiary on his account and you don’t live in a community property state — it’s possible that he has other plans for it. That is, what’s his remains his.

Also see: My wife is divorcing me after 21 years — and wants everything in our savings account

With your ex-husband’s agreement, you could modify your divorce decree to provide for a Qualified Domestic Relations Order — a court order requiring workplace retirement benefits, says David Levi, senior managing director at CBIZ MHM, a Minneapolis-based accounting provider. That would ensure that no penalty or tax would be paid on the separation and/or withdrawal of these assets. IRAs are more typically split using a “transfer of property between spouses or incident to divorce.” Either way, it must be a recognized pension or benefit plan under the Employee Retirement Income Security Act. You should, of course, consult a lawyer to make sure that you invest any funds you might get in a way that protects you from further taxes or penalties.

Remember, if your divorce decree is already signed you will need to file an appeal. Talk to your former husband and your lawyer, in that order. I wish you both good health (and an amicable separation of your assets) in your new lives.

Do you have questions about inheritance, tipping, weddings, family feuds, friends or any tricky issues relating to manners and money? Send them to MarketWatch’s Moneyologist and please include the state where you live (no full names will be used).

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