executive deferred compensation divorce

Taxation Implications of Executive Deferred Compensation Plans in Divorce: Insight from Attorney Matthew A. Mishak


For many corporations, executive deferred compensation plans are invaluable instruments for incentivizing their upper echelons. These mechanisms allow executives to defer a segment of their income, often until a time they might find themselves in a more favorable tax bracket or upon the realization of certain milestones, like retirement.

However, during the proceedings of a divorce, these plans’ intricate details come sharply into focus, particularly when there’s an intention to migrate the funds to a different investment medium. Diving into the non-qualified distinction of these plans and the subsequent taxation nuances, Attorney Matthew A. Mishak emphasizes the necessity of adept legal counsel.


1. Grasping the Non-Qualified Nature of Executive Deferred Compensation Plans

Setting them apart from preferred retirement instruments such as 401(k)s and IRAs, executive deferred compensation plans bear the “non-qualified” label. This implies they do not adhere to certain provisions of the Internal Revenue Code, and consequently, they’re not privy to some tax advantages.

2. Navigating the Tax Waters of Fund Transfers

Transferring assets from these plans is not a direct affair. Upon the release of funds from a non-qualified plan, they instantly become taxable income. This translates to the withdrawn sum being subjected to income tax at the individual’s prevailing tax rate. A pivotal realization is that these plans are designed to defer, not negate, tax obligations.

3. The Quandary of Deferred Compensation Amidst Divorce

Within the confines of divorce negotiations, deferred compensation often emerges as a convoluted asset to apportion. If there’s a stipulation in the divorce decree to relocate funds from deferred compensation to another investment conduit, it becomes essential to acknowledge the imminent tax implications upon distribution. This can notably diminish the asset’s net value, a factor both parties in the divorce should fully comprehend.

Suppose one spouse is designated a portion of the other’s deferred compensation, intending to redirect it to another investment. In that case, it’s imperative first to account for this sum as taxable income. Only the residual amount, post-tax deductions, can then be invested in the chosen vehicle.

4. The Imperative of Consulting an Experienced Domestic Relations Attorney: Guidance from Attorney Matthew A. Mishak

Owing to the intricate dynamics of segmenting and redistributing assets derived from executive deferred compensation plans, Attorney Matthew A. Mishak staunchly advocates for individuals to seek the expertise of a seasoned domestic relations attorney. Such professionals can illuminate the complexities, ensuring clarity in divorce agreements while being fully cognizant of potential tax pitfalls.

In brokering divorce settlements, it’s of utmost importance to grasp these assets’ value after taxation. This knowledge guarantees that what appears as equitable distribution on paper doesn’t inadvertently result in an inequitable financial outcome due to overlooked tax implications.


While executive deferred compensation plans proffer distinct perks to key personnel, their non-qualified categorization can infuse complications in divorce negotiations. The act of reallocating funds from these plans invariably incurs taxation, affecting the asset’s tangible worth during settlement discussions.

To ensure an equitable division and to avert unforeseen tax challenges, Attorney Matthew A. Mishak passionately underscores the pivotal role of a knowledgeable domestic relations attorney in these matters. Contact us today for more information.