Is My Retirement at Risk in a CA Divorce Property Division?
Property Division, California Divorce

Is My Retirement at Risk in a CA Divorce Property Division?

People are living and enjoying the fruits of their labor longer than ever before. Planning and investing for retirement are some of the wisest decisions married couples can make. But what happens to your retirement assets in the event of a divorce? Handling retirement funds in a divorce is complex, and without the right help, you could make serious mistakes and lose most of your assets. CA Certified Family Law Specialist Judy L. Burger shares what you need to understand about retirement and a divorce property division.

Sharing Pensions and Retirement Plans

All kinds of pensions and retirement plans exist. They all share a common factor: a person and/or an employer pays into the account, which accumulates with interest over time to provide a living after retiring from active employment. Your spouse may also pay into the same pension or retirement plan, or have one of their own.

Some of the most common plans in California include:

  • Employee benefit plans
  • Defined Benefit Plans
  • Defined Contributions Plans
  • 401(k)s
  • CalPERS
  • LACERA
  • LACERS
  • CA State Teachers’ Retirement System
  • LA City Employees’ Retirement System
  • Federal Employees’ Retirement System
  • Military pensions
  • 457 plans
  • 403b plans
  • 401a plans

Retirement and Community Property

California is a community property state, meaning any assets or debts obtained from the date of marriage to the date of separation, except for gifts or inheritances to the individual, are considered to be community property and are divided equally between the parties in a divorce. 

This means that any retirement accounts that received marital funds are considered community property and are subject to the 50/50 asset division. Even if only one spouse contributed to the pension or retirement plan, depending on when the payments were made, both spouses may have a right to the money in the plan.

California law may allow interest earned on pre-marital contributions to be considered separate property and not subject to division with the other spouse. Therefore, you may be able to claim a retirement account opened before your marriage as separate property.

Protecting Your Rights and Assets

Dividing a pension or retirement plan between spouses in a divorce property division requires a special order called a Qualified Domestic Relations Order (QDRO) or a Domestic Relations Order (DRO). QDROs are utilized for private retirement plans, while DROs are used for state and federal public retirement plans. This legal order specifies how much each spouse receives. Unless there are separate agreements that apply, the funds qualify as community property and will be divided equally.

A QDRO/DRO takes time to prepare, file, receive a court signature, and be served on the retirement account holder. Before this order becomes binding, a spouse participating in the plan could withdraw some or all of the funds without notifying the other spouse. You may be able to contest this action, but that will take time and money.

Also, without a QDRO/DRO in place before the divorce is granted, someone else may inherit the retirement or pension assets in the event of a death because you are no longer the rightful heir.

Get Seasoned Help for Your Divorce Property Division

The Law Offices of Judy L. Burger helps Californians negotiate the rocks and shoals of divorce and its many details. Among the most complex is dividing marital property—especially pensions and retirement accounts. Judy Burger is a Certified Family Law Specialist with notable experience in property divisions who can help you ensure a fair and equitable distribution of assets in your divorce.

Don’t risk everything you’ve worked for – contact us right away for guidance and representation in your California divorce. We have eight locations throughout North, Central, and Southern California to serve you.

 

California Divorce, Legal Separation

What If I’ve Been Married More Than Ten Years?

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In some instances, ten years is the benchmark for a marriage to be considered a long-term marriage.  California follows this general rule, along with the Social Security Administration and the U.S. military, which can make it worthwhile to stick it out a little longer if you are close to your ten-year anniversary.  (And vice-versa if you are more likely to be required to pay spousal support.) In some cases, a marriage shorter than ten years may be deemed a long-term marriage.  As with many decisions in family court, the judge has broad discretionary authority and his or her decisions are likely to withstand appeal if evidence was presented at trial to support the judge’s decision. California law (Family Code Section 4336(a)) says that where a marriage is “of long duration,” the court retains jurisdiction indefinitely after the divorce is completed, unless the spouses agree otherwise.  Retaining jurisdiction means the court may continue making decisions about matters between the ex-spouses, and can reevaluate original orders and modify them if the facts justify a change.  In other words, unless alimony was waived by agreement, a court can reopen a case and award alimony later based on a change in circumstances, even if alimony was not awarded in the original proceedings. The Social Security Administration also considers ten years to be a long-term marriage, which means a spouse could be eligible for derivative Social Security benefits if he or she remains unmarried at retirement age, depending on the former spouse’s earnings. If your spouse is an active duty member of the military and you were married ten years, you may also be eligible for retirement pay and other continuing military benefits. At the Law Offices of Judy L. Burger, we will persistently pursue the best outcome possible for you in your divorce or post-divorce proceedings, whether you need to demonstrate the other spouse’s faults, or defend such claims.  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 a spouse facing litigation, 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.