Episode Summary

Melinda Eitzen sits down with Richard Sutherland, Duffee + Eitzen of counsel and a veteran Texas family law attorney, to demystify one of the most complex areas of divorce: dividing retirement assets. They discuss the different types of retirement plans commonly encountered in divorce, including ERISA plans, military retirement, teacher retirement, and state plans. Highlights why retirement accounts cannot simply be split and also explores common mistakes that lead to lost benefits, and emphasizes why handling retirement correctly the first time is essential for protecting clients’ long-term financial security.

About the Guest

Richard is a highly experienced Texas family law attorney who focuses extensively on retirement division in divorce cases. Practicing as of-counsel at Duffee + Eitzen Wichita Falls office.

Key Takeaways About Dividing Retirement in Divorce

● Not All Retirement Plans Are the Same: ERISA plans, military retirement, teacher retirement, and state plans all follow different rules and terminology.

● QDROs Are Mandatory for ERISA Plans: You cannot divide a 401(k) or pension without a properly drafted and approved Qualified Domestic Relations Order.

● Early Discovery Prevents Big Problems: Attorneys must identify all plans, including predecessor or multiple plans, and obtain the Summary Plan Description early.

● Plan Administrators Should Be Notified During Divorce: Putting plans on notice can prevent participants from borrowing against accounts and reducing marital value.

● Pre-Approval of QDROs Matters: Getting plan approval before finalizing the divorce avoids rejected orders and costly post-divorce lawsuits.

● Military Retirement Is Governed by Federal Law: The 10/10 rule affects direct payment through DFAS, but retirement may still be divisible under Texas law even if the rule doesn’t apply.

● Critical Benefits Must Be Addressed in the Decree: COLAs and survivor benefits cannot be added later if they are omitted from the original divorce decree.

● Statements Don’t Equal Value: Teacher and retirement statements often do not reflect true value—actuarial calculations are frequently required.

● Fixing Retirement Mistakes Later Is Expensive: Missing or incorrect orders can force clients into additional litigation years after divorce.