As a general rule, each spouse is entitled to half of the retirement investments which were created during the marriage, regardless of who created them. However, Utah courts have recognized that it is best for the spouse who created the retirement account to receive all of the account and for the other spouse to receive something of equal value, such as equity from the home or cash or an automobile. If there is nothing of equal value to give to the other spouse, then the retirement account may have to be split.
To determine how much of a retirement account each spouse should receive, you may simply agree with each other as to a dollar amount or percentage. If a judge must decide how much each party is entitled to, the judge will multiply one-half of the value of the account by the number of years married and divide that by the total number of years the employee worked. This formula is from the Utah Supreme Court case of Woodward v. Woodward, 656 P.2d 431, 433-34 (Utah 1982). As an example, if the parties were married 7 years, and the husband worked 12 years, and the account value was $30,000, the wife's share would be $8,750:
One-half times $30,000 = $15,000
$15,000 times 7 = $105,000
$105,000 divided by 12 = $8,750
There can be factors which affect the application of this formula, sometimes the date of separation, or whether or not one of the spouses has done something unreasonable, such as spending, destroying, giving away or otherwise dissipating marital assets.
Once the final decree of divorce is entered, and if a retirement account is to be split or transferred to the other spouse, then a special order must be created called a Qualified Domestics Relations Order, or QDRO for short. You should ask the court to designate who should draft the order and that it be done as soon after the decree is entered as is possible. Persons who wait to complete the QDRO process may find that something has happened and the money in the account is no longer available.
Most pension plan administrators have a QDRO packet with instructions and sample documents or forms. The person whose name is on the account will have access to the account information and can request the packet. If the other spouse is the one making the request, the person whose name is on the account may have to sign a "release of information" form so that the plan administrator will be able to provide the information and packet to that spouse.
Determining how much of a pension account each spouse should receive can be very technical. Drafting a QDRO is a complicated task. There can be much more involved than we have explained here. We encourage you to obtain assistance through an attorney with regards to any investments or savings for retirement that have been created during your marriage.