In a recent case issued out the Cuyahoga County Court of Appeals, the Court discussed the differences between the retirement assets of the parties and the "income" that is generated from those retirement assets. For example, there is a difference between a 401K account that has a $100,000.00 balance in it and the $3,000.00 per year amount that is generated from the investment income on that account. While a Court cannot use the $100,000 as "income" for support purposes, it can use the $3,000.00. In this Court of Appeals case (which also involved other spousal support issues), the ex-husband argued, among other things, that since his retirement assets were awarded to him in his divorce years earlier, the Court could not use the "income" currently being generated from that retirement account for calculating a modification or termination of his spousal support (the ex-husband had filed a motion to modify his spousal support). The Court held that while it cannot utilize the balance in the account as "income," it could use the monthly payments being sent to the ex-husband as "income" for spousal support purposes.
Something to remember when considering how you divide up retirement assets and setting support in a divorce decree.