Splitting a pension
An issue most people worry about when facing a divorce, after child custody issues, is how property will be divided. California is a community property state, which generally means any property acquired during a valid marriage by a husband or wife is considered joint property.
Sections 760 and 771 of the California Family Code outline the state law pertaining to community property. During a divorce proceeding, a judge will equitably divide community property based on possession, the earnings of both parties and the length of the couple’s marriage. (Remember equitable does not necessarily mean equal.) Unless there is a valid prenuptial agreement, California community property will apply if the couple divorces here.
A pension is often the most valuable asset in the marriage, and you should consult to a qualified California family law attorney before agreeing to any terms of a property division. Procedures for dividing a pension can vary greatly depending on the type of pension. Certain types require the pension be joined and named as a party to the divorce before a judge can rule on how it will be divided.
Once the court decides how a pension will be divided, if at all, the court must issue a qualified domestic relations order (QDRO). Courts often look to the parties’ attorneys to provide a proposed QDRO, which should be preapproved by the benefits provider to eliminate multiple submissions to the court.
It should be noted, that if you are in a same-sex marriage or domestic partnership, your union is not yet recognized by federal law. Since pension plans are governed primarily by federal law, there may be special rules that apply to your case.
If you are involved in a case that involves the splitting of a pension plan, the Law Offices of Judy L. Burger will aggressively pursue the best outcome possible for you in your divorce proceedings, including a fair distribution of retirement assets and pension plans.
Judy L. Burger is known for her aggressive representation of clients in high conflict cases in and around the San Francisco Bay and Sacramento areas. If you are facing divorce, call us today to learn more about how we can help. Call (415)293-8314 in the San Francisco Bay area or (916)631-1935 in the Sacramento area, or contact us online via our confidential inquiry form.
