What is a decree of divorce, decree of separate maintenance or written instrument incident to such a decree?
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A judgment of dissolution, even as to status only, would be a decree of divorce. An order dividing the IRA could be entered as part of such a judgment or at any time after entry of judgment. The more troublesome question is whether an IRA can be divided before entry of a judgment of dissolution. In other words, what does “decree of separate maintenance” mean? We are unaware of any tax authority on this question. However, the Internal Revenue Service has addressed a related question in a private letter ruling. Private Letter Ruling 9344027: Husband had received substantial qualified plan benefits upon retirement and had rolled them over to several IRAs. He and his wife separated, and she moved out of the country. They entered into a “separation agreement” in which they agreed to divide the IRAs equally. They sought a ruling from the IRS that the transfer of one-half of each of husband’s IRAs to an IRA in wife’s name would not be taxable pursuant to Code Section 408(d)(6). The IRS ruled
