Unfortunately, not every spouse is honest and straightforward when it comes to disclosing assets in a divorce. This may be particularly true with retirement benefits that represent years and years of labor and investment. If a spouse doesn't want to share, he may take efforts to conceal the funds. This doesn't mean they're impossible to track down, however.
Your spouse's tax returns might tell you whether he has retirement assets before you spend a lot of time and money trying to track down something that doesn't exist. Every state requires the filing of some sort of financial affidavit or disclosure at the beginning of a contested divorce, and these usually involve attaching at least the previous year's return. If your spouse took any distributions from retirement assets, these funds should appear on the first page of his Form 1040 under "income." If he took deductions for contributing to an IRA, this should also appear on the first page under "adjusted gross income." He might have claimed the retirement savings contribution credit, and this would appear on line 50 of his return. If he paid any taxes associated with a qualified retirement plan, this would appear on line 58 of his 1040.
Although submitting one tax return with a financial affidavit is usually mandatory in divorce proceedings, you might have to dig deeper than this. For example, your spouse's hidden retirement asset might have been idle during the year before your marriage broke up, so that return might not offer any clues. Ideally, you should go back at least five years to a point when divorce wasn't on your spouse's mind, so he wasn't yet taking any care to conceal anything. Various discovery methods can allow you to demand previous years' returns from him, such as a request for production of documents or interrogatories. If you filed joint returns, you can access copies on your own. If your spouse stalls or is uncooperative, you can issue a subpoena duces tecum to his employer, past employers, or even to a plan administrator if you can identify it, asking for information about retirement benefits. This type of subpoena obligates a third party to provide or disclose documentation in a divorce case.
If your spouse blatantly refuses to respond to your discovery requests, you can file a motion with the court as part of your divorce proceedings to compel him to come clean under oath and provide documentation. If you think a retirement asset might exist but you can't find any trace of it, your attorney can also depose your spouse. Depositions take place under oath and involve your attorney asking questions designed to turn up more clues, or even asking point blank if a certain asset exists. If your spouse lies, he perjures himself, either in depositions, through discovery he provided, or on the financial affidavit he filed with the court. In this case, you might have recourse later if you can't find the funds until after your divorce is final. Depending on your state's laws, you might be able to reopen your divorce case to address division of the omitted asset.
If your spouse is serious about hiding a retirement asset, you might have to enlist professional help to find it. He might have concealed the funds so well that only a trained forensic professional can track them down. This – as well as depositions, subpoenas and motions – will cost a great deal of extra money. Depending on the value of the hidden retirement plan, you could end up spending more than you could possibly recoup when the asset is uncovered and divided. At best, you'd probably be awarded 50 percent of the marital share of the retirement plan – that which accumulated after your date of marriage. If most of the hidden account is premarital, this portion is exempt from distribution in a divorce, so you might find yourself spending more to locate the account than your share is worth.
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- Legal Voice: Retirement, Divorce and You (PDF)
- IRS: Form 1040 (PDF)
- Robin Roshkind: What is a Motion to Compel?
- Forbes: The Five Key Points Divorcing Women Need to Know About Financial Affidavits
- Stephens Margolin: Remedies for Omitted or Hidden Assets in Divorce
- Patrick J. Hart: Divorce and Retirement Plans
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