Los Angeles Divorce Attorney
Property Division in California


The information contained in these FAQs is general information related to retirement plans. It is not specific legal advice
and our office does not furnish pension advice to clients. Because this is such a complex area of law that requires
pension expertise, our office always advises clients to retain a pension/QDRO expert to handle any pension matters in
their dissolution and draft a QDRO(s), if necessary. If you have any questions regarding pensions our office can make
referrals to pension experts.

Information provided here covers private retirement plans that are governed by Federal laws and guidelines in the
Employee Retirement Income Security Act of 1974 (ERISA) and the Internal Revenue Code. ERISA is a Federal statute
that sets standards for most employer and union sponsored retirement plans in private industry and imposes
responsibilities on those running the plan. Participants in these plans have certain rights as well as responsibilities.

The rules discussed here do not apply to all retirement plans. For example, the information does not apply to:
  • State and local government plans, including plans covering public school teachers and school administrators;
  • Most church plans; and
  • Plans for Federal government employees.
Also, if you are in a collectively-bargained plan, the rules that apply under ERISA may be different in some cases.

The information contained here answers the most common questions about retirement plans. Keep in mind, however,
that the information here is a simplified summary of participant rights and responsibilities, not a legal interpretation of

1. Types Of Retirement Plans
2. Earning Retirement Benefits
3. Plan Information To Review
4. Payment Of Benefits
5. Taking Your Retirement Benefit With You
6. Your Benefit During A Plan Termination Or Company Merger
7. Divorce - Claims Against Your Benefit

1. Types Of Retirement Plans

The first step to understanding your retirement benefits is to find out what kind of retirement plan your or
your spouse's employer has. There are two major types of plans,
defined benefit and defined
contribution. Keep in mind that the employer may have more than one type of plan, and may have
different participation requirements for each.

defined benefit plan, funded by the employer, promises you a specific monthly benefit at retirement.
The plan may state this promised benefit as an exact dollar amount, such as $100 per month at
retirement. Or, more often, it may calculate your benefit through a formula that includes factors such as
your salary, your age, and the number of years you worked at the company. For example, your pension
benefit might be equal to 1 percent of your average salary for the last 5 years of employment times your
total years of service.

defined contribution plan, on the other hand, does not promise you a specific benefit amount at
retirement. Instead, you and/or your employer contribute money to your individual account in the plan. In
many cases, you are responsible for choosing how these contributions are invested, and deciding how
much to contribute from your paycheck through pretax deductions. Your employer may add to your
account, in some cases by matching a certain percentage of your contributions. The value of your
account depends on how much is contributed and how well the investments perform. At retirement, you
receive the balance in your account, reflecting the contributions, investment gains or losses, and any
fees charged against your account. The
401(k) plan is a popular type of defined contribution plan, and
there are three types of 401(k) plans: traditional,
SIMPLE 401(k), and Safe Harbor 401(k) plans. The
SIMPLE-IRA plan, SEP, employee stock ownership plan (ESOP), and profit-sharing plan are
other examples of defined contribution plans.
(see Characteristics Of Defined Benefit And Defined
Contribution Plans)

    1. Employers can choose whether to offer a retirement plan to employees; Federal law does not require
    employers to offer or to continue to offer a plan.
    2. The Pension Benefit Guaranty Corporation (PBGC) guarantees payment of certain retirement benefits for
    participants in most private defined benefit plans if the plan is terminated without enough money to pay all of the
    promised benefits. The government does not guarantee benefit payments for defined contribution plans. For
    more information, see the PBGC’s Web site.
    3. Some hybrid plans – such as cash balance plans – contain features of both types of plans described above.

2. Earning Retirement Benefits

Once you have learned what type of retirement plan you or your spouse has, you need to find out when
you or your spouse started to participate in the plan and when benefits begun. Plan rules can vary as
long as they meet the requirements under Federal law. You need to check with the plan or review the
plan booklet (
Summary Plan Description) to learn plan’s rules and requirements. Your plan may
require you to work for the company for a period of time before you may participate in the plan. In
addition, there typically is a time frame for when you begin to accumulate benefits and earn the right to
them (sometimes referred to as “

When do you begin to accumulate benefits?
Once you begin to participate in a retirement plan, you need to understand how you accrue or earn
benefits. Your accrued benefit is the amount of retirement benefits that you have accumulated or that
have been allocated to you under the plan at any particular point in time.

Defined benefit plans often count your years of service in order to determine whether you have
earned a benefit and also to calculate how much you will receive in benefits at retirement. Employees in
the plan who work part-time, but who work 1,000 hours or more each year, must be credited with a
portion of the benefit in proportion to what they would have earned if they were employed full time. In a
defined contribution plan, your benefit accrual is the amount of contributions and earnings that
have accumulated in your 401(k) or other retirement plan account, minus any fees charged to your
account by your plan.

Special rules for when you begin to accumulate benefits may apply to certain types of retirement plans.
For example, in a
Simplified Employee Pension Plan (SEP), all participants who earn at least $450 a
year from their employers are entitled to receive a contribution.

Can a plan reduce promised benefits?
Defined benefit plans may change the rate at which you earn future benefits but cannot reduce the
amount of benefits you have already accumulated. For example, a plan that accrues benefits at the rate
of $5 a month for years of service through 2006 may be amended to provide that for years of service
beginning in 2007 benefits will be credited at the rate of $4 per month. Plans that make a significant
reduction in the rate at which benefits accumulate must provide you with written notice generally at least
15 days before the change goes into effect.

Also, in most situations, if a company terminates a defined benefit plan that does not have enough
funding to pay all of the promised benefits, the Pension Benefit Guaranty Corporation will pay plan
participants and beneficiaries some retirement benefits, but possibly less than the level of benefits

In a defined contribution plan, the employer may change the amount of employer contributions in the
future. Depending on the plan terms, the employer may also be able to stop making contributions for a
few years or indefinitely.

Finally, an employer may terminate a defined benefit or a defined contribution plan, but may not reduce
the benefit you have already accrued in the plan.

How soon do you have a right to your accumulated benefits?
You immediately vest in your own contributions and the earnings on them. This means you have earned
the right to these amounts without the risk of forfeiting them. But note – there are restrictions on actually
taking them out of the plan. See the discussion on the rules for distributions later in this booklet.

However, you do not necessarily have an immediate right to any contributions made by your employer.
Federal law provides a maximum number of years a company may require employees to work to earn
the vested right to all or some of these benefits. (
See vesting rules).

In a defined benefit plan, an employer can require that employees have 5 years of service in order to
become vested in the employer funded benefits. Employers also can choose a graduated vesting
schedule, which requires an employee to work 7 years in order to be 100 percent vested, but provides
at least 20 percent vesting after 3 years, 40 percent after 4 years, 60 percent after 5 years, and 80
percent after 6 years of service. The permitted vesting schedules for current defined benefit plans are
shown in Table 3 below. Plans may provide a different schedule as long as it is more generous than
these vesting schedules.

In a defined contribution plan such as a 401(k) plan, you are always 100 percent vested in your own
contributions to a plan, and in any subsequent earnings from your contributions. However, in most
defined contribution plans you may have to work several years before you are vested in the employer’s
matching contributions. (There are exceptions, such as the SIMPLE 401(k) and the Safe Harbor 401(k),
in which you are immediately vested in all required employer contributions.)

Currently, employers have a choice of 2 different vesting schedules for employer matching 401(k)
contributions, which are shown in Table 2. Your employer may use a schedule in which employees are
100 percent vested in employer contribution after 3 years of service, called cliff vesting. Under
graduated vesting, an employee must be at least 20 percent vested after 2 years, 40 percent after 3
years, 60 percent after 4 years, 80 percent after 5 years, and 100 percent after 6 years.

You may lose some of the employer-provided benefits you have earned if you leave your job before you
have worked long enough to be vested. However, once vested, you have the right to receive the vested
portion of your benefits even if you leave your job before retirement. But even though you have the right
to certain benefits, your defined contribution plan account value could decrease after you leave your job
as a result of investment performance. (
see Vesting Rules)

3. Plan Information To Review

If you have a question about your or your spouse's retirement plan, you can start by looking for an
answer in the information that the plan provides. You can request this information from a
administrator, the person who is in charge of running the plan. The employer can tell you how to
contact the plan administrator.

Information Provided By The Retirement Plan

Each retirement plan is required to have a formal, written plan document that details how it operates
and its requirements. As noted previously, there is also a booklet that describes the key plan rules,
called the
Summary Plan Description (SPD), which should be much easier to read and understand.
The SPD should include a summary of any material changes to the plan or to the information required to
be in the SPD. In many cases, you can start with the SPD and then look at the plan document if you still
have questions.

In addition, plans must provide you with a number of notices.

For example,
defined contribution plans, such as 401(k) plans, generally are required to provide
advance notice to employees when a “blackout period” occurs. A blackout period is when a participant’s
right to direct investments, take loans, or obtain distributions is suspended for a period of at least three
consecutive business days. Blackout periods can often occur when plans change recordkeepers or
investment options.

Some plan information, such as the Summary Plan Description, must be provided to you automatically
and without charge at the time periods indicated below. You may request a Summary Plan Description at
other times, but your employer might charge you a copying fee. You must ask the plan if you want other
information, such as a copy of the written plan document or the plan’s Form 5500 annual financial
report, and you may have to pay a copying fee.
See Retirement Plan Key Information. Many employers
provide benefit information on a Web site.

In some cases, plans provide information more frequently than required by Federal law. For instance,
many large defined contribution plans provide quarterly benefit statements, and some plans allow
participants to check their statements online or by telephone.

The plan’s annual financial report (Form 5500) is also available (there is a copying fee if over 100
pages) by contacting the U.S. Department of Labor, EBSA Public Disclosure Facility, Room N-1513, 200
Constitution Avenue, NW, Washington, D.C. 20210, Tel: 202.693.8673. In addition, if your plan
administrator does not provide you, as a participant covered under the plan, with a copy of the Summary
Plan Description automatically or after you request it, you may contact the Department of Labor toll free
at 1.866.444.EBSA (3272) for help.

4. Payment Of Benefits

Once you understand what type of plan you or your spouse have, how you/spouse earn benefits, and
how much your/spouse's benefits will be, it is important to learn when and how you can receive them.

When can you begin to receive retirement benefits?
There are several points to keep in mind in determining when you can receive benefits:
Federal law provides
guidelines, for when plans must start paying retirement benefits.
Plans can choose to start paying benefits sooner. The plan documents will state when you may begin
receiving payments from the plan.
You must file a claim for benefits for your payments to begin. This takes some time for administrative

Under certain circumstances, your benefit payments may be suspended if you continue to work beyond
normal retirement age. The plan must notify you of the suspension during the first calendar month or
payroll period in which payments are withheld. This information should also be included in the
Plan Description. A plan also must advise you of its procedures for requesting an advance
determination of whether a particular type of reemployment would result in a suspension of benefit
payments. If you are a retiree and are considering taking a job, you may wish to write to your plan
administrator and ask if your benefits would be suspended.

Federal law guidelines show the general requirements for when payments begin. Listed below are some
permitted variations:

  • Although defined benefit plans and money purchase plans generally allow you to receive
    benefits only when you reach the plan’s retirement age, some have provisions for early retirement.
  • 401(k) plans often allow you to receive your account balance when you leave your job.
  • 401(k) plans may allow for distributions while still employed if you have reached age 59½ or if you
    suffer a hardship.
  • Profit-sharing plans may permit you to receive your vested benefit after a specific number of
    years or whenever you leave your job.
  • A phased retirement option allows employees at or near retirement age to reduce their work hours
    to part time, receive benefits, and continue to earn additional funds.
  • ESOPs do not have to pay out any benefits until one year after the plan year in which you retire,
    or as many as six years if you leave for reasons other than retirement, death, or disability.

When is the latest you may begin to take payment of your benefits?
Federal law sets a mandatory date by which you must start receiving your retirement benefits, even if
you would like to wait longer. This mandatory start date generally is set to begin on April 1 following the
calendar year in which you turn 70½ or, if later, when you retire. However, your plan may require you to
begin receiving distributions even if you have not retired by age 70½.

In what form will your benefits be paid?
If you are in a defined benefit or money purchase plan, the plan must offer you a benefit in the form of a
life annuity, which means that you will receive equal, periodic payments, often as a monthly benefit,
which will continue for the rest of your life. Defined benefit and money purchase plans may also offer
other payment options, so check with the plan. If you are in a
defined contribution plan (other than a
money purchase plan), the plan may pay your benefits in a single lump-sum payment as well as offer
other options, including payments over a set period of time (such as 5 or 10 years) or an annuity with
monthly lifetime payments.

Can a benefit continue for your spouse should you die first?
In a defined benefit or money purchase plan, unless you and your spouse choose otherwise, the form of
payment will include a survivor’s benefit. This survivor’s benefit, called a qualified joint and survivor
annuity (QJSA), will provide payments over your lifetime and your spouse’s lifetime. The benefit payment
that your surviving spouse receives must be at least half of the benefit payment you received during
your joint lives. If you choose not to receive the survivor’s benefit, both you and your spouse must
receive a written explanation of the QJSA and, within certain time limits, you must make a written waiver
and your spouse must sign a written consent to the alternative payment form without a survivor’s benefit.
Your spouse’s signature must be witnessed by a notary or plan representative.

In most 401(k) plans and other defined contribution plans the plan is written so different protections
apply for surviving spouses. In general, in most defined contribution plans if you should die before you
receive your benefits, your surviving spouse will automatically receive them. If you wish to select a
different beneficiary, your spouse must consent by signing a waiver, witnessed by a notary or plan

If you were single when you enrolled in the plan and subsequently married, it is important that you notify
your employer and/or plan administrator and change your status under the plan. If you do not have a
spouse, it is important to name a beneficiary.

If you or your spouse left employment prior to January 1, 1985, different rules apply. For more
information on these rules, contact the Department of Labor toll free at 1.866.444.EBSA (3272).

Can you borrow from your 401(k) plan account?
401(k) plans are permitted to – but not required to – offer loans to participants. The loans must charge a
reasonable rate of interest and be adequately secured. The plan must include a procedure for applying
for the loans and the plan’s policy for granting them. Loan amounts are limited to the lesser of 50% of
your account balance or $50,000 and must be repaid within 5 years, or 15 years for residential loans.

Can you get a distribution from your plan if you are not yet 65 or your plan’s normal retirement
age but are facing a significant financial hardship?
Again, defined contribution plans are permitted to – but not required to – provide distributions in case of
hardship. Check your plan booklet to see if it does permit them and what circumstances are included as

5. Taking Your Retirement Benefit With You

If you leave an employer before you reach retirement age, whether or not you can take your benefits out
and/or roll them into another tax-qualified plan or account will depend on what type of plan you are in.

If you leave before retirement, can you take your retirement benefit with you?
If you are in a defined benefit plan (other than a cash balance plan), you most likely will be required
to leave the benefits with the retirement plan until you become eligible to receive them. As a result, it is
very important that you update your personal information with the
plan administrator regularly and
keep current on any changes in your former employer’s ownership or address.

If you are in a cash balance plan, you probably will have the option of transferring at least a portion of
your account balance to an
individual retirement account or to a new employer’s plan.

If you leave your employer before retirement age and you are in a
defined contribution plan (such as
401(k) plan), in most cases you will be able to transfer your account balance out of your employer’s

What choices do you have for taking your defined contribution benefits?

A lump sum – you can choose to receive your benefits as a single payment from your plan, effectively
cashing out your account. You may need to pay income taxes on the amount you receive, and possibly
a penalty.

rollover to another retirement plan – you can ask your employer to transfer your account balance
directly to your new employer’s plan if it accepts such transfers.

A rollover to an
IRA – you can ask your employer to transfer your account balance directly to an
individual retirement account (IRA).

If your account balance is less than $5,000 when you leave the employer, the plan can make an
immediate distribution without your consent. If this distribution is more than $1,000, the plan must
automatically roll the funds into an IRA it selects, unless you elect to receive a lump sum payment or to
roll it over into an IRA you choose. The plan must first send you a notice allowing you to make other
arrangements, and it must follow rules regarding what type of IRA can be used (i.e. it cannot combine
the distribution with savings you have deposited directly in an IRA). Rollovers must be made to an entity
that is qualified to offer individual retirement plans. Also, the rollover IRA must have investments
designed to preserve principal. The IRA provider may not charge more in fees and expenses for such
plans than it would to its other individual retirement plan customers.

Please note: If you elect a lump sum payment and do not transfer the money to another retirement
account (employer plan or IRA other than a Roth IRA), you will owe a tax penalty if you are under age
59½ and do not meet certain exceptions. In addition, you may have less to live on during your
retirement. Transferring your retirement plan account balance to another plan or an IRA when you leave
your job will protect the tax advantages of your account and preserve the benefits for retirement.

What happens if you leave a job and later return?
If you leave an employer for whom you have worked for several years and later return, you may be able
to count those earlier years toward
vesting. Generally, a plan must preserve the service credit you
have accumulated if you leave your employer and then return within five years. Service credit refers to
years of service that count towards vesting. Because these rules are very specific, you should
read your
plan document carefully if you are contemplating a short-term break from your employer,
and then discuss it with your plan administrator. If you left employment prior to January 1, 1985, different
rules apply.

If you retire and later go back to work for a former employer, you must be allowed to continue to accrue
additional benefits, subject to a plan limit on the total years of service credited under the plan.

6. Your/Your Spouse's Benefit During A Plan Termination Or Company Merger

As noted at the beginning of this booklet, employers are not required to offer a retirement plan and
plans can be modified and/or terminated.

What happens when a plan is terminated?
Federal law provides some measures to protect employees who participated in plans that are
terminated, both defined benefit and defined contribution. When a plan is terminated, the current
employees must become 100 percent vested in their accrued benefits. This means you have a right to
all the benefits that you have earned at the time of the plan termination, even benefits in which you were
not vested and would have lost if you had left the employer. If there is a partial termination of a plan, for
example, if your employer closes a particular plant or division that results in the end of employment of a
substantial percentage of plan participants, the affected employees must be immediately 100 percent
vested to the extent the plan is funded.

What if your terminated defined benefit plan does not have enough money to pay the
The Federal government, through the Pension Benefit Guaranty Corporation (PBGC), insures most
private defined benefit plans. For terminated defined benefit plans with insufficient money to pay all of
the benefits, the PBGC will guarantee the payment of your vested pension benefits up to the limits set by
law. For further information on plan termination guarantees, contact the Pension Benefit Guaranty
Corporation toll free at 1.800.400.7242, or visit the
Web site.

What happens if a defined contribution plan is terminated?
The PBGC does not guarantee benefits for defined contribution plans. If you are in a defined
contribution plan that is in the process of terminating, the
plan fiduciaries and trustees should take
actions to maintain the plan until they terminate it and pay out the assets.

Is your accrued benefit protected if your plan merges with another plan?
Your plan rules and investment choices are likely to change if your company merges with another. Your
employer may choose to merge your plan with another plan. If your plan is terminated as a result of the
merger, the benefits that you have accrued cannot be reduced. You must receive a benefit that is at
least equal to the benefit you were entitled to before the merger. In a defined contribution plan, the
value of your account may still fluctuate after the merger based on the performance of the investments.

Special rules apply to mergers of
multiemployer defined benefit plans, which generally are under
the jurisdiction of the PBGC. Contact the PBGC for further information.

What if your/spouse's employer goes bankrupt?
Generally, your retirement assets should not be at risk if your employer declares bankruptcy . Federal
law requires that retirement plans fund promised benefits adequately and keep plan assets separate
from the employer’s business assets. The funds must be held in trust or invested in an insurance
contract. The employers’ creditors cannot make a claim on retirement plan funds. However, it is a good
idea to confirm that any contributions your employer deducts from your paycheck are forwarded to the
plan’s trust or insurance contract in a timely manner.

Significant business events such as bankruptcies, mergers, and acquisitions can result in employers
abandoning their individual account plans (e.g., 401(k) plans), leaving no plan fiduciary to manage it. In
this situation, participants often have great difficulty in accessing the benefits they have earned and
have no one to contact with questions. Custodians such as banks, insurers, and mutual fund companies
are left holding the assets of these plans but do not have the authority to terminate the plans and
distribute the assets. In response, the Department of Labor issued rules to create a voluntary process
for the custodian to wind up the plan’s business so that benefit distributions can be made and the plan
terminated. Information about this program can be found on the Department’s Web site at www.dol.

7. Potential Claims Against Your Benefit (Divorce)

In general, your retirement plan is safe from claims by other people. Creditors to whom you owe money
cannot make a claim against funds that you have in a retirement plan. For example, if you leave your
employer and transfer your
401(k) account into an individual retirement account (IRA), creditors
generally cannot get access to those IRA funds even if you declare bankruptcy.

Federal law does make an exception for family support and the division of property at divorce. A state
court can award part or all of a participant's retirement benefit to the spouse, former spouse, child, or
other dependent. The recipient named in the order is called the alternate payee. The court issues a
specific court order, called a domestic relations order, which can be in the form of a state court
judgment, decree or order, or court approval of a property settlement agreement. The order must relate
to child support, alimony, or marital property rights, and must be made under state domestic relations
law. The
plan administrator determines if the order is a qualified domestic relations order (QDRO)
under the plan’s procedures and then notifies the participant and the alternate payee. If the participant
is still employed, a QDRO can require payment to the alternate payee to begin on or after the participant’
s earliest possible retirement age available under the plan. These rules apply to both
defined benefit
defined contribution plans. (see QDROs)

Contact a Los Angeles Divorce Attorney at Law Offices of Warren R. Shiell to discuss your
property division issues.
Please call to make an appointment at 310.247.9913.


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