QUESTION

Can you include the simplified employee pension individual retirement arrangement as part of a divorce settlement?

Asked on Jun 25th, 2014 on Divorce - Oklahoma
More details to this question:
During divorce mediation I requested that my wife's simplified employee pension individual retirement arrangement be included as part of our settlement. The mediator, my lawyer, my wife's lawyer, and my wife (who is self-employed as a lawyer) all said her simplified employee pension individual retirement arrangement was funded by an inheritance and therefore cannot be included in the settlement. I said simplified employee pension individual retirement arrangement's can only be funded by a business. The mediator and my lawyer disagreed and said individual retirement arrangement money can come from anywhere. I disagreed but we moved on even though I was not satisfied. After the mediation hearing I asked a financial services corporation where the simplified employee pension individual retirement arrangement is set up and I asked a local financial services corporation office about this (my certified public accountant is on vacation and finding others in my area to answer tax questions is nearly impossible this time of year). Both financial services corporation say simplified employee pension individual retirement arrangement contributions can only be made by the business. Even if the money originated from an inheritance account, it loses its inheritance status once it becomes part of the individual retirement arrangement and the individual retirement arrangement would absolutely be eligible as part of the divorce settlement. I told my lawyer what these investment companies said and she pretty much screamed at me that they do not know Oklahoma law and I cannot touch the simplified employee pension individual retirement arrangement. She said it did not matter because the hearing is over and we reached an agreement and she reluctantly said she had look into it but I have not heard from her in a week. Who is right? What can I do if I am right and my lawyer is wrong now that mediation is over? The inheritance came from an elderly client and friend of my wife who died in 2005, and left her entire estate to my wife (not to my wife's business), excluding all of her children.
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1 ANSWER

This is a very complicated issue, probably not a yes or no answer; nor a who is completely right or wrong. Look to the IRS manual, Part 4, Chapter 72, "Employee Plans Technical Guidelines" for guidance. You can find it on the IRS website. If you all cannot reach an agreement, this issue will likely have to be determined by the judge and no one ends up satisfied. Other issues are the yearly filing status: how were taxes filed? Could be issue of erroneous tax filing, etc.
Answered on Jul 07th, 2014 at 5:03 AM

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