making spouse take 72t in a divorce in lieu of alimony
Hello,
I am currently going through a divorce. My husband and his attorney are pushing me to take 72t from our retirement in lieu of alimony.
Is this legal? A possibility? Can the judge really agree to this? If so, what are the ramifications? How will this effect on me financially moving forward after the divorce?
Thanking you in advance,
Elaine
Permalink Submitted by Alan - IRA critic on Wed, 2018-03-14 17:18
Permalink Submitted by Elaine Mulligan on Wed, 2018-03-14 18:03
thank you for all that information! The acct is my husbands IRA.i am 53 Year’s old yes, he is currently taking the 72t for the past 3 Year’s with 2 more to go.alimony is my better option I would think and waiting for the new tax laws is definitely a good idea!however, my worst case scenario on court date in August is that the judge forces me to take 72t in Lieu of alimony. It will be a fairly large sum once split into my own acct but I still worry I could run out by the next 30 yrs of my life expectancy And that alimony would be more in my favor.and if this does happen, what are my options on how long I would have to draw from the 72t?thanking you in advance again,Elaine
Permalink Submitted by Alan - IRA critic on Wed, 2018-03-14 21:28
The challenge with splitting an IRA with an active 72t plan is that the IRS has issued inconsisent rulings over the years, so there are risks involved, probably more so for your husband since he has already taken 3 years of distributions. In 1997, the IRS found that a plan would remain valid if the exact amount distributed was maintained in porportion. For example, if you received 50% of the IRA balance, you would be responsible for taking out 50% of the existing SEPP distribution and husband would have to reduce his by 50%. In 2000, in another case the IRS found that the receiving spouse had no obligation to continue, but of course could start a new 72t plan. Also, in 2000 the IRS found that if the original IRA owner reduced his distribution in porportion to the transferred %, his plan would still be valid. That still leaves questions, such as when his distributions stop in 2 years, if yours can be stopped (for example to start your own new plan), or if you must continue until YOU hit 59.5. In summary, it would be best for you to receive the IRA and start your own plan because that would eliminate coordination or concern over what he does and when his plan ends. That said, if you were to receive alimony, how long would it last and what happens if he has major health issues or financial problems? Alimony would not be guaranteed. Conversely, if you receive your share of the IRA, you have the “bird in hand” and independent control of that money.
Permalink Submitted by Elaine Mulligan on Thu, 2018-03-15 12:37
Good morning Alan. Again, thank you so much for the very helpful information. The only thing I am still unclear about is. …if I do opt to take the 72t instead of alimony, my own 72t, is it until I am 591/2? Or is it lifetime or can I only do it for 5 yrs? Still very unclear on how long.Regards,Elaine
Permalink Submitted by Alan - IRA critic on Thu, 2018-03-15 15:19