McLean, Virginia · Retirement Account Division
Why Equal Accounts Are Not Equal Value: Dividing Retirement in a McLean Divorce
In a McLean divorce, retirement and investment accounts are often the largest part of the estate, and they hide a trap. Two accounts can show the same balance and be worth very different amounts after taxes. A pension adds another layer, because there are two ways to divide it. Let me walk you through how to split these the right way.
By Corrie Sirkin, Esq. · Founding Partner, NOVA Legal Professionals
This article is one part of our larger divorce guide. For the full picture, start with our cornerstone, Divorce in Virginia. Here, I will focus on retirement and investment accounts.
Only the marital share is divided
As with any account, only the marital share is on the table, generally the contributions and growth that built up during the marriage. What you saved before the wedding usually stays separate, as long as you can trace it. The framework lives in Va. Code § 20-107.3(G), which covers pensions, profit-sharing, and deferred compensation.
A pension can be divided two ways
A pension is not a pile of cash you can split today, so courts handle it one of two ways:
- Divide the future benefit. The other spouse receives a share of each monthly payment if, as, and when it is paid, often measured with a coverture fraction comparing the years of marriage to the years of service.
- Value it now and offset. An expert sets a present value on the pension, and the other spouse takes assets of equal value instead, such as the house or an investment account.
Which approach is better depends on the numbers, your ages, and how much certainty each of you wants.
A Word About Taxes
Here is the trap. A dollar in a pre-tax 401(k) is not worth a dollar in a Roth account or a taxable brokerage account, because the tax bills are different. Splitting accounts by their face balances can quietly hand one spouse more value than the other. Compare after-tax value, not just the statement balance, and confirm the treatment with a tax professional.
Have a pension or large accounts to divide?
A short conversation can show you the marital share and whether to divide or offset. No pressure, no commitment.
Big estates often mean more than a 401(k)
A McLean estate may hold executive and nonqualified deferred compensation, stock plans, and several investment accounts alongside the standard 401(k) or IRA. Each has its own valuation and its own tax profile, and the marital share has to be sorted account by account. In larger cases this is expert work, because a small error in valuing a pension or a deferred plan can move the result by a lot. For the wider view, see our retirement account division practice area page.
The right order still has to follow
Even with a clear agreement, most retirement accounts move only with the right court order. A private 401(k) or pension uses a Qualified Domestic Relations Order, an IRA can transfer trustee to trustee, and federal plans use their own orders. Getting that paperwork right is the last step that turns the division on paper into money in the right hands. A McLean divorce is heard in the Fairfax Circuit Court, the 19th Judicial Circuit, at 4110 Chain Bridge Road in the City of Fairfax.
“People agree to split the accounts down the middle and feel fair about it. Then the tax bills arrive, and one of them got far less than they thought. After-tax value is the only number that matters.”
Corrie Sirkin, Esq. · Founding Partner
Corrie’s Practical Advice
Three habits protect a McLean client dividing retirement. First, list every account by type and tax status, pre-tax, Roth, or taxable, because that is what tells you the real value. Second, decide early whether you want to divide a pension over time or take other assets now in exchange, since that choice shapes the whole settlement. Third, do not sign until you have seen after-tax numbers, not statement balances, so an “even” split is actually even.
Equal balances are not equal value. The tax status is part of the price.
Authoritative References
Sources
- Code of Virginia, § 20-107.3(G). Division of pensions, profit-sharing, and deferred compensation in equitable distribution. law.lis.virginia.gov/vacode/title20
- Internal Revenue Service. Tax treatment of retirement accounts, including pre-tax, Roth, and taxable accounts, and QDRO transfers. irs.gov
- Fairfax County Circuit Court. Hears divorce and property division for Fairfax County residents, including McLean. fairfaxcounty.gov/circuit
Statutory rules verified against the current Code of Virginia as of June 2026. Tax outcomes vary, so confirm your situation with a tax professional.
Frequently Asked Questions
How is a pension divided in a Virginia divorce?
Two ways. The court can award the other spouse a share of each future monthly payment, paid if, as, and when the pension pays out, often using a coverture fraction based on years of marriage versus years of service. Or an expert can set a present value on the pension and the other spouse takes assets of equal value now instead. Only the marital share is divided.
Are two accounts with the same balance worth the same?
Often no. A pre-tax 401(k) carries future income tax that a Roth account does not, and a taxable brokerage account has its own treatment. Splitting accounts by face balances can hand one spouse more after-tax value than the other. The fair comparison is after-tax value, which is worth confirming with a tax professional before signing.
What part of a retirement account is marital?
Generally the contributions and growth that accrued between the date of marriage and the date of separation. Savings from before the marriage are usually separate if they can be traced. For a pension, the marital share is often measured with a coverture fraction. Accurate balances and service dates as of separation are what set the marital portion.
Do I need a QDRO to divide retirement?
For most employer plans, yes. A private 401(k) or pension is divided with a Qualified Domestic Relations Order, while an IRA can usually move by a trustee-to-trustee transfer authorized by the decree. Federal plans such as the TSP and FERS use their own separate orders. Without the correct order, the plan will not release the funds, even with a signed agreement.
How is executive or deferred compensation handled?
Executive and nonqualified deferred compensation is treated as a marital asset to the extent it was earned during the marriage, under Va. Code § 20-107.3(G). These plans often have unique payout and tax rules, so the marital share is valued and divided account by account, frequently with input from a financial expert in larger estates.
When You Are Ready
Let’s divide your retirement by real value, not face value.
Bring me your account statements and pension details, and I will help you see the after-tax picture and the smartest way to split it. The first call is a conversation, not a commitment.