How Retirement Accounts Get Divided in a Florida Divorce
Retirement accounts come up in almost every divorce that involves more than a few years of marriage — not just later-life cases. Here is the general framework, in plain language.
Only the Marital Portion Counts
Florida treats retirement benefits earned during the marriage as marital property, subject to division — but benefits earned before the marriage or after the parties separate generally aren’t. In practice, this means a retirement account isn’t automatically “half yours, half mine”: the first step is usually identifying what portion of the account’s growth happened during the marriage, using account statements from around the date of marriage (or as close to it as records allow) as the starting point.
The Type of Account Changes the Paperwork, Not the Marital-Share Principle
The marital-portion concept applies broadly, but different account types are actually divided through different instruments:
- A private employer plan — a 401(k), 403(b), or private pension — is typically divided using a Qualified Domestic Relations Order (QDRO), a specialized court order prepared after the divorce terms are finalized.
- An IRA or Roth IRA usually doesn’t need a QDRO — it’s generally divided through transfer language in the settlement agreement itself, processed directly with the IRA custodian.
- A public pension, such as the Florida Retirement System or a municipal police/fire plan, isn’t governed by the same federal law as a private plan and uses the plan’s own order process.
- Federal civil service or military retirement each use their own separate order types.
Getting the account type right matters because using the wrong kind of order — or assuming a settlement paragraph alone divides the account — can leave a spouse’s share unimplemented long after the divorce is final.
A Settlement Agreement Is Not, by Itself, a QDRO
This is one of the most common gaps in a divorce settlement: the agreement says “wife gets 40% of the 401(k),” but no one ever has the plan-specific order drafted and accepted by the plan afterward. The agreement establishes what was agreed to; a separate, plan-accepted order is usually still required before the money actually moves.
Three Common Ways a Division Actually Plays Out
- A direct split — the account is divided and each party keeps their share within the plan or a rollover account.
- An offset — one spouse keeps the retirement account, and the other receives other assets (often equity in the home) of comparable value instead.
- A formula — for a pension without a simple present-day balance, the division may be expressed as a percentage of the benefit ultimately paid, tied to the years of marriage relative to total years of plan participation.
Which approach makes sense depends on the type of account, whether there’s a current balance to divide or a future benefit to formula-split, and what other assets are available to balance against.
What This Means for Mediation
Mediation is where the parties work out which of these approaches fits their situation and reach agreement on the numbers — not where the QDRO or plan-specific order itself gets drafted. That’s counsel’s work, done after mediation, based on the terms the parties agreed to. Bringing recent account statements to the session — including a value as close as possible to the date of marriage, if available — makes that conversation far more productive than working from estimates.
This article is general information, not legal, tax, or financial advice. Sun State Mediator does not draft QDROs or plan-specific orders, calculate coverture or present values, or advise on which division approach is best for a given situation — those are questions for your attorney and, where appropriate, a financial or valuation professional.
Related: property & debt division mediation →
Related: retirement benefits in a later-life divorce →
Related: beneficiary designations after divorce →