A. For the purposes of this section:
"Alternate payee" shall have the same meaning as provided under § 206 of the Employee Retirement Income Security Act of 1974 (ERISA). In the case of a retirement plan that is not subject to ERISA, the term "alternate payee" means an individual who has an interest in a retirement plan pursuant to a judgment, decree, or order, including approval of a property settlement agreement, that would be described in § 206(d)(3)(B) of ERISA if the retirement plan were subject to ERISA.
"Annual benefit" means an amount payable as an annuity for the lifetime of the individual who claims the exemption provided under this section, assuming that annuity payments will commence upon the individual's attainment of age sixty-five or, if the individual attained age sixty-five on or before the exemption provided under this section is claimed, the individual's age on the date that the exemption is claimed.
"Retirement plan" means a plan, account, or arrangement that is intended to satisfy the requirements of United States Internal Revenue Code §§ 401, 403 (a), 403 (b), 408, 408 A, 409 (as in effect prior to repeal by United States P.L. 98-369), or § 457. Whether a plan, account, or arrangement is intended to satisfy the requirements of one of the foregoing provisions shall be determined based on all of the relevant facts and circumstances including, but not limited to, the issuance of a favorable determination letter by the United States Internal Revenue Service, reports or returns filed with United States or state agencies, and communications from the plan sponsor to participants.
B. Except as otherwise provided in this section, the interest of an individual under a retirement plan shall be exempt from creditor process to the same extent permitted under federal bankruptcy law for such a plan. The exemption provided by this section shall be available whether such individual has an interest in the retirement plan as a participant, beneficiary, contingent annuitant, alternate payee, or otherwise.
C. The exemption provided under subsection B shall not apply to claims made against an individual by the alternate payee of such individual or to claims made against such individual by the Commonwealth in administrative actions pursuant to Chapter 19 (§ 63.2-1900 et seq.) of Title 63.2 or any court process to enforce a child or child and spousal support obligation.
D. If two individuals who are married or were married are entitled to claim the exemption provided under subsection B of an interest under the same retirement plan or plans and such individuals are jointly subject to creditor process as to the same debt or obligation and the debt or obligation arose during the marriage, then the exemption provided under subsection B as to such debts or obligations shall not exceed, in the aggregate, the exemption permitted under federal bankruptcy law for such a plan. The exemption permitted under federal bankruptcy law shall be allocated among such persons in the same proportion as their respective interests in the retirement plan or plans.
E. The exemption provided under this section must be claimed within the time limits prescribed by § 34-17.
1990, c. 425; 1992, c. 716; 1996, c. 330; 1999, cc. 766, 796; 2005, c. 284; 2007, c. 302.
Notes of Decisions
Cited in
23
cases, 1991–2011 · leading case:
In Re Bissell, 255 B.R. 402 (Bankr. E.D. Va. 2000).
In Re Bissell, 255 B.R. 402 (Bankr. E.D. Va. 2000).
· cites it 93× “, 1999) ("In addition to the amount that may be claimed exempt under Va.Code Ann. § 34-34, the debtor may take advantage of the 'homestead' exemption provided by Va.”
Phillips v. Bottoms, 260 B.R. 393 (E.D. Va. 2000).
· cites it 58× “” Va.Code § 34-34(0 (Michie 2000). Congress expressed a clear intention to allow states to participate in determining what a debtor needs to emerge from bankruptcy with a fresh start.”
In Re Cathcart, 203 B.R. 599 (Bankr. E.D. Va. 1996).
· cites it 23× “1 The chapter 7 trustee filed a timely objection to the claim of exemption, asserting that the retirement accounts were not in fact ERISA-qualified but were IRA’s subject to the limits on exemption set forth in Va.Code Ann. § 34-34. An evidentiary hearing was held on the…”
Johnston v. Mayer (In Re Johnston), 218 B.R. 813 (Bankr. E.D. Va. 1998).
· cites it 21× “The trustee concedes that if this court finds that the funds become property of the estate, he will nonetheless be bound by the qualified domestic relations order that directs the funds to be rolled-over directly into an IRA or other qualified plan which would likely entitle the…”
In Re Hasse, 246 B.R. 247 (Bankr. E.D. Va. 2000).
· cites it 19× “The IRA was claimed exempt under Va.Code Ann. § 34-34. 3 Virtually *250 all of the debtor’s other assets are either encumbered by hens or are exempt, with the result that the IRA is the only asset potentially available for the payment of creditor claims.”
Thompson v. Bd. of Trs. (In Re Thompson), 182 B.R. 140 (Bankr. E.D. Va. 1995).
· cites it 9× “2 Thompson contends that the Board cannot exercise its right of setoff because he has claimed his retirement benefits exempt under Va.Code § 34-34 (Michie Supp.1994). 3 Generally, a right of setoff cannot be exercised against the exempt assets of the debtor.”
In Re Gurry, 253 B.R. 406 (Bankr. E.D. Va. 2000).
· cites it 35× “1 On their schedules, they listed the 401(k) plan 2 as not being property of the bankruptcy estate, and they claimed an exemption for the two IRAs under Va.Code Ann. § 34-34. The meeting of creditors was held on March 2, 2000.”
In Re Meyer, 211 B.R. 203 (Bankr. E.D. Va. 1997).
· cites it 8× “With respect to $1,432 in funds garnished from his checking account, the debtor now asserts that those funds are exempt under Va.Code Ann. § 34-34 as being derived from military retired pay.”
In Re Heidel, 215 B.R. 814 (Bankr. E.D. Va. 1997).
· cites it 33× “in an attempt to exempt his IRAs under Va. Code § 34-34” he should be barred from claiming exemptions under § 34-34.”
In Re Sheeran, 369 B.R. 910 (Bankr. E.D. Va. 2007).
· cites it 10× “In Schedule C she claims the following items as exempt: (1) “IRA Account with American Funds (rolled over from 401(k) had with former firm, Carr & Porter, LLC on or about 8/25/06)” pursuant to Va.Code Ann. § 34-34 valued at $57,416.24; (2) “Potential contingent and…”
In Re Hanes, 162 B.R. 733 (Bankr. E.D. Va. 1994).
· cites it 5× “The Debtor also sought to exempt the retirement plans under Va.Code § 34-34 (Michie Supp.1993). At the hearing on the Bank’s objection, however, the Debtor said that § 34-34 did not apply to this case.”
In Re Stoney, 445 B.R. 543 (Bankr. E.D. Va. 2011).
· cites it 4× “” 2 The Debtor claimed exemptions in the following personal property under the identified subsections of Virginia Code § 34-26: [[Image here]] Finally, the Debtor scheduled an exemption in an asset described as “Potential cash value of Pension Plan/Retirement Plan/401k” pursuant…”
— Va. Code Ann. § 34-34(A) — 6 cases
In Re Bissell, 255 B.R. 402 (Bankr. E.D. Va. 2000).
“, 1999) ("In addition to the amount that may be claimed exempt under Va.Code Ann. § 34-34, the debtor may take advantage of the 'homestead' exemption provided by Va.”
Johnston v. Mayer (In Re Johnston), 218 B.R. 813 (Bankr. E.D. Va. 1998).
“The trustee concedes that if this court finds that the funds become property of the estate, he will nonetheless be bound by the qualified domestic relations order that directs the funds to be rolled-over directly into an IRA or other qualified plan which would likely entitle the…”
In Re Hasse, 246 B.R. 247 (Bankr. E.D. Va. 2000).
“The IRA was claimed exempt under Va.Code Ann. § 34-34. 3 Virtually *250 all of the debtor’s other assets are either encumbered by hens or are exempt, with the result that the IRA is the only asset potentially available for the payment of creditor claims.”
In Re Gurry, 253 B.R. 406 (Bankr. E.D. Va. 2000).
“1 On their schedules, they listed the 401(k) plan 2 as not being property of the bankruptcy estate, and they claimed an exemption for the two IRAs under Va.Code Ann. § 34-34. The meeting of creditors was held on March 2, 2000.”
Phillips v. Bottoms, 260 B.R. 393 (E.D. Va. 2000).
“” Va.Code § 34-34(0 (Michie 2000). Congress expressed a clear intention to allow states to participate in determining what a debtor needs to emerge from bankruptcy with a fresh start.”
— Va. Code Ann. § 34-34(B) — 7 cases
Johnston v. Mayer (In Re Johnston), 218 B.R. 813 (Bankr. E.D. Va. 1998).
“The trustee concedes that if this court finds that the funds become property of the estate, he will nonetheless be bound by the qualified domestic relations order that directs the funds to be rolled-over directly into an IRA or other qualified plan which would likely entitle the…”
In Re Cathcart, 203 B.R. 599 (Bankr. E.D. Va. 1996).
“1 The chapter 7 trustee filed a timely objection to the claim of exemption, asserting that the retirement accounts were not in fact ERISA-qualified but were IRA’s subject to the limits on exemption set forth in Va.Code Ann. § 34-34. An evidentiary hearing was held on the…”
In Re Sheeran, 369 B.R. 910 (Bankr. E.D. Va. 2007).
“In Schedule C she claims the following items as exempt: (1) “IRA Account with American Funds (rolled over from 401(k) had with former firm, Carr & Porter, LLC on or about 8/25/06)” pursuant to Va.Code Ann. § 34-34 valued at $57,416.24; (2) “Potential contingent and…”
In Re Gurry, 253 B.R. 406 (Bankr. E.D. Va. 2000).
“1 On their schedules, they listed the 401(k) plan 2 as not being property of the bankruptcy estate, and they claimed an exemption for the two IRAs under Va.Code Ann. § 34-34. The meeting of creditors was held on March 2, 2000.”
In Re Bissell, 255 B.R. 402 (Bankr. E.D. Va. 2000).
“, 1999) ("In addition to the amount that may be claimed exempt under Va.Code Ann. § 34-34, the debtor may take advantage of the 'homestead' exemption provided by Va.”
— Va. Code Ann. § 34-34(C) — 6 cases
Thompson v. Bd. of Trs. (In Re Thompson), 182 B.R. 140 (Bankr. E.D. Va. 1995).
“2 Thompson contends that the Board cannot exercise its right of setoff because he has claimed his retirement benefits exempt under Va.Code § 34-34 (Michie Supp.1994). 3 Generally, a right of setoff cannot be exercised against the exempt assets of the debtor.”
In Re Bissell, 255 B.R. 402 (Bankr. E.D. Va. 2000).
“, 1999) ("In addition to the amount that may be claimed exempt under Va.Code Ann. § 34-34, the debtor may take advantage of the 'homestead' exemption provided by Va.”
In Re Gurry, 253 B.R. 406 (Bankr. E.D. Va. 2000).
“1 On their schedules, they listed the 401(k) plan 2 as not being property of the bankruptcy estate, and they claimed an exemption for the two IRAs under Va.Code Ann. § 34-34. The meeting of creditors was held on March 2, 2000.”
In Re Hasse, 246 B.R. 247 (Bankr. E.D. Va. 2000).
“The IRA was claimed exempt under Va.Code Ann. § 34-34. 3 Virtually *250 all of the debtor’s other assets are either encumbered by hens or are exempt, with the result that the IRA is the only asset potentially available for the payment of creditor claims.”
In Re Cathcart, 203 B.R. 599 (Bankr. E.D. Va. 1996).
“1 The chapter 7 trustee filed a timely objection to the claim of exemption, asserting that the retirement accounts were not in fact ERISA-qualified but were IRA’s subject to the limits on exemption set forth in Va.Code Ann. § 34-34. An evidentiary hearing was held on the…”
— Va. Code Ann. § 34-34(D) — 2 cases
In Re Cathcart, 203 B.R. 599 (Bankr. E.D. Va. 1996).
“1 The chapter 7 trustee filed a timely objection to the claim of exemption, asserting that the retirement accounts were not in fact ERISA-qualified but were IRA’s subject to the limits on exemption set forth in Va.Code Ann. § 34-34. An evidentiary hearing was held on the…”
In Re Bissell, 255 B.R. 402 (Bankr. E.D. Va. 2000).
“, 1999) ("In addition to the amount that may be claimed exempt under Va.Code Ann. § 34-34, the debtor may take advantage of the 'homestead' exemption provided by Va.”
— Va. Code Ann. § 34-34(F) — 2 cases
In Re Gurry, 253 B.R. 406 (Bankr. E.D. Va. 2000).
“1 On their schedules, they listed the 401(k) plan 2 as not being property of the bankruptcy estate, and they claimed an exemption for the two IRAs under Va.Code Ann. § 34-34. The meeting of creditors was held on March 2, 2000.”
In Re Cathcart, 203 B.R. 599 (Bankr. E.D. Va. 1996).
“1 The chapter 7 trustee filed a timely objection to the claim of exemption, asserting that the retirement accounts were not in fact ERISA-qualified but were IRA’s subject to the limits on exemption set forth in Va.Code Ann. § 34-34. An evidentiary hearing was held on the…”
— Va. Code Ann. § 34-34(G) — 2 cases
In Re Bissell, 255 B.R. 402 (Bankr. E.D. Va. 2000).
“, 1999) ("In addition to the amount that may be claimed exempt under Va.Code Ann. § 34-34, the debtor may take advantage of the 'homestead' exemption provided by Va.”
In Re Heidel, 215 B.R. 814 (Bankr. E.D. Va. 1997).
“in an attempt to exempt his IRAs under Va. Code § 34-34” he should be barred from claiming exemptions under § 34-34.”
— Va. Code Ann. § 34-34(H) — 5 cases
In Re Hasse, 246 B.R. 247 (Bankr. E.D. Va. 2000).
“The IRA was claimed exempt under Va.Code Ann. § 34-34. 3 Virtually *250 all of the debtor’s other assets are either encumbered by hens or are exempt, with the result that the IRA is the only asset potentially available for the payment of creditor claims.”
In Re Bissell, 255 B.R. 402 (Bankr. E.D. Va. 2000).
“, 1999) ("In addition to the amount that may be claimed exempt under Va.Code Ann. § 34-34, the debtor may take advantage of the 'homestead' exemption provided by Va.”
In Re Gurry, 253 B.R. 406 (Bankr. E.D. Va. 2000).
“1 On their schedules, they listed the 401(k) plan 2 as not being property of the bankruptcy estate, and they claimed an exemption for the two IRAs under Va.Code Ann. § 34-34. The meeting of creditors was held on March 2, 2000.”
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