Division of Assets in a Divorce
In a divorce proceeding, the division of assets is a critical aspect that is often contentious. This includes the division of retirement accounts. According to the North Dakota Century Code 14-05-24, when a divorce is granted, the court is required to make an equitable distribution of the property and debts of the parties. This means that all assets, including retirement accounts, are subject to division.
Retirement Accounts as Marital Property
In North Dakota, retirement accounts are considered marital property. This includes 401(k)s, IRAs, pensions, and other retirement savings accounts. The North Dakota Century Code 14-05-24 states that the valuation date for marital property and debt is either the date mutually agreed upon between the parties or, if no agreement is reached, sixty days before the initially scheduled trial date.
If there is a substantial change in value of an asset or debt between the date of valuation and the date of trial, the court may adjust the valuation of that asset or debt as necessary to effect an equitable distribution. This means that the value of retirement accounts at the time of divorce may be divided between the spouses, regardless of whose name is on the account.
Factors Considered in Division of Retirement Accounts
The court considers several factors when dividing retirement accounts. These include the duration of the marriage, the age and health of the parties, the earning abilities of the parties, the conduct of the parties during the marriage, and the financial circumstances of each party.
In cases where one party to the divorce is covered by a government pension system in lieu of social security and is not entitled to receive full social security benefits, the court will compute the present value of the social security benefits that would have been due to the party with the government pension during the covered period and subtract that amount from the value of the government pension to determine the marital portion of the government pension (North Dakota Century Code 14-05-24).
Protection of Retirement Accounts
While the division of retirement accounts is a standard part of the divorce process, there are certain protections in place. According to Rule 8.4 of the North Dakota Rules of Court, neither spouse may dispose of, sell, encumber, or otherwise dissipate any of the parties’ assets during the interim period of the divorce proceedings, except for necessities of life or for the necessary generation of income or preservation of assets, or for retaining counsel to carry on or to contest the proceeding.
If a spouse does dispose of, sell, encumber, or otherwise dissipate assets during the interim period, that spouse is required to provide to the other spouse an accounting within 30 days. Violation of these provisions may result in contempt of court.
In conclusion, while you may wish to keep your personal retirement accounts intact in a divorce, it is important to understand that these accounts are typically considered marital property and are subject to division. It is advisable to consult with a legal professional to understand your rights and options in this regard.