IRAs and Divorce

April 27, 2019August 4, 2020
by Angie

Like other assets, IRAs – individual retirement accounts – are considered community property in many California divorce cases. But IRAs in a divorce aren’t always considered community property; in fact, they can be pretty complicated to sort out.

Here’s what you need to know about your IRA and divorce in California.

Related: Divorce and pension payout

IRAs and Divorce

Your individual retirement account may be yours and yours alone, or part of it may belong to your spouse. Even if it does belong to you alone, you may end up negotiating with it during your divorce. Your Stockton divorce lawyer will give you case-specific advice based on your situation.

The state of California treats IRAs the same way it treats other types of property. Your IRA can fall into one of three categories: separate property, community property, or commingled property.

IRAs as Separate Property

If you contributed to your IRA before you were married, and not during the time you were married, it’s generally considered separate property. There are exceptions, though, which you and your attorney can discuss. Separate property is property that only you have the rights to – your spouse does not have any rights to your separate property.

IRAs as Community Property

If you contributed to your IRA after you were married – such as, for example, when you started a new job as a newlywed – the state of California generally considers it community property. That means it belongs to both you and your spouse, because you made the contributions with money that belonged to both of you at the time.

IRAs as Commingled Property

If you or your partner had a pension or retirement benefit from a job you had before and during your marriage, some of your contributions to it are considered commingled. When an IRA is commingled, the contributions you made to it before your marriage are separate property and the contributions you made to it during your marriage are community property.

In cases like these, it’s sometimes beneficial to hire an expert who can help sort through all your contributions over time and zero in on what portion of your IRA is community property and what portion is separate property.

After you separate from your spouse, the state considers the contributions you make to be separate property. However, like everything else in divorce, there are some exceptions – so it’s in your best interest to discuss the specifics of your case with your attorney.

How Do You Divide an IRA in a Divorce?

When the whole situation is pretty clear-cut, such as when all your contributions are either separate or community property, dividing an IRA in divorce is just like dividing other property. You may choose to use your IRA as a negotiation point, or you and your spouse can agree to split the benefit.

No matter what you choose to do, your attorney will suggest that you work it out on your own without having to litigate it in court, though. When you and your spouse are able to reach an agreement together, rather than forcing the judge to decide who gets what part of your IRA in the divorce, you’ll both be more satisfied with the outcome.

Can a Spouse Get an Entire IRA in a Divorce?

In some cases, through negotiation, one spouse can get the other spouse’s entire IRA in a divorce. However, the judge in your case will only sign off on an agreement you make if it’s fair to both parties – and that means one spouse can’t take everything and leave the other in the poorhouse.

Do You Need to Talk to a Lawyer About IRAs and Divorce?

If you’re divorcing your spouse and you have an IRA, we can help you sort things out.

Call us at 209-546-6870 to schedule a consultation with an experienced divorce and pension attorney right now.

Divorce

Dividing Retirement Assets in a Divorce

April 22, 2019August 4, 2020
by Angie

Dividing retirement assets in a divorce can be complicated – and in many cases, it requires preparing a QDRO and hiring a professional to get an accurate value. Even if it’s relatively simple, you’ll still need to account for it in your divorce settlement. In many cases, you’ll have to split some of what’s in your retirement account.

Related: Retirement and divorce settlements

Dividing Retirement Assets in a Divorce

In some cases, both spouses agree to keep their own pensions and retirement accounts without taking any part of the other spouse’s. However, when one spouse doesn’t have a retirement account – or when one has a much smaller retirement asset than the other does – the courts may order the couple to split these assets.

You are absolutely free to reach your own agreement with your spouse rather than fighting over retirement assets in your divorce. In fact, your attorney will probably suggest that you come to an agreement on your own rather than litigating; that’s because it’s simpler and more cost-effective for you to hash things out with your spouse.

Unfortunately, some spouses are completely unwilling to negotiate. In cases like those, your attorney can fight hard to preserve your rights and ensure that dividing retirement assets in your divorce is a fair, equitable process.

Dividing Retirement Assets in a Divorce: Community or Separate Property?

Retirement assets can be community property – as in they belong to both of you – or they can be separate property that belongs only to one spouse. They can even be a mix of the two.

Retirement Assets as Community Property	Retirement Assets as Separate Property
If you contributed to your pension while you were married, it is most likely community property unless you addressed retirement assets in a valid prenuptial agreement.	If you contributed to your retirement assets before you were married, but not during your marriage, it’s most likely considered separate property that belongs to you alone.

What if the Retirement is Covered in a Prenup?

Many divorcing couples in California have prenuptial agreements, which can cover all kinds of things about property division. In your prenup, you and your spouse may have agreed to several things, including the rights and obligations you each have when it comes to property (even if it was acquired during your marriage) and spousal support.

If a retirement account is included in your prenuptial agreement, it’s a good idea to talk to your attorney about it. The prenup can’t be grossly unfair – if it is, the court may find that all or part of it is invalid.

Related: Prenups in California

How Does Payout Work After You Divide Retirement Assets in a Divorce?

If one spouse is entitled to part of the other spouse’s pension, the payout depends on the plan. Different retirement systems have different processes.

For example, when you’re dealing with a military retirement account, the length of the marriage determines whether the participant (the person who earned the benefit through military service) pays the alternate payee (his or her spouse) or the money comes directly from the Defense Finance and Accounting Service.

In other cases, such as when you must file a qualified domestic relations order, or QDRO, the payout usually takes between 60 and 90 days. That’s because the plan’s administrator has to process the documents and set the wheels in motion. Every plan is different, however, so yours may happen more quickly or it may take longer.

The bottom line: When you divide retirement assets in a divorce, several factors determine how the payout works and how long it takes. Your Stockton divorce attorney will be able to give you more specific guidance when she has all the facts of your case.

Related: Divorce and pension payout

Do You Need to Talk to a Lawyer About Dividing Retirement Assets in a Divorce?

If you need to talk to an attorney about dividing retirement assets in a divorce, we’re here to help. Call us at 209-546-6870 to schedule a consultation with an experienced divorce and pension attorney. We’ll answer your questions and start building a strategy that gets you the best possible outcome.

Divorce

Retirement and Divorce Settlements

April 12, 2019August 3, 2020
by Angie

For many people, retirement accounts and divorce settlements are confusing. Will your ex-spouse get your retirement? Will your divorce settlement require you to give over half what you planned to retire on?

Here’s what you need to know.

Retirement and Divorce Settlements

If you or your spouse has money tied up in a retirement plan, you’ll need to account for it in your divorce settlement. The type of retirement plan (or plans) that you have will determine how you’re supposed to split this asset.

You can be years away from retirement and still have to split some of what’s in your retirement account in your divorce settlement. In California, the law allows for two types of property: separate and community.

Retirement, Divorce Settlements and Separate Property

Separate property is property that belongs only to you or only to your spouse. If you have separate property, you take it with you in the divorce.

Contributions you made to a retirement account before you were married generally count as separate property. If you put money into your retirement account for, say, 10 years before you married your spouse, the contributions you made during that decade are yours and yours alone.

Retirement, Divorce Settlements and Community Property

Community property is any property you and your spouse acquire during your marriage. The courts divide your community property (or you and your spouse reach a fair agreement on your own community property) when you divorce.

Contributions you made to a retirement account during the time that you were married count as community property. The court can divide this part of your retirement account between you and your ex-spouse.

If you contributed some money to a retirement account before your marriage and some money after your marriage, you have both separate and community property. Only the money you put in and benefits you earned during your marriage count as community property, but it can be a little bit complicated to sort through it all so you can follow the law.

Should You Hire a Pension Expert?

For some people, the best solution is to hire someone who understands how retirement accounts and divorce settlements work in California. The person you hire can work out all the math and help ensure you’re following the law.

However, you don’t have to hire a pension expert. You and your spouse are free to reach an agreement on how to divide your retirement account – and that might even include doing something like waiving your rights to each other’s pensions.

What is a QDRO?

A QDRO is a qualified domestic relations order. The QDRO is a court order that explains the details on splitting up certain types of pensions. It grants one spouse certain rights to the other spouse’s pensions.

What Should a QDRO Include?

A QDRO must include, at minimum:

The name and last known mailing address of the participant and alternate payee (the person receiving the benefit through the divorce settlement)
The name of each plan that the order applies to
The dollar amount or percentage – or, alternatively, the method of determining the amount or percentage – of the benefit that must be paid to the alternate payee
The number of payments or the time period to which the order applies

Some plans require additional information, as well. This is just the bare minimum.

If you’re filing for separate retirement plans, such as if you had two jobs with pensions that cover some portion of the time you were married, you must file a separate QDRO for each.

Your attorney – and your pension expert, if you choose to hire one – will explain what you need in your situation.

Do You Need to Talk to a Lawyer About Retirement and Your Divorce Settlement?

If you’re divorcing and you or your spouse has a retirement plan, your divorce settlement needs to reflect it. We may be able to help you, so call us at 209-546-6870 to schedule your consultation with a Stockton divorce attorney now. We’ll also answer your questions about child custody, child support, spousal support and property division.

Tag: <span>IRA</span>

IRAs and Divorce

IRAs and Divorce

IRAs as Separate Property

IRAs as Community Property

IRAs as Commingled Property

How Do You Divide an IRA in a Divorce?

Can a Spouse Get an Entire IRA in a Divorce?

Do You Need to Talk to a Lawyer About IRAs and Divorce?

Dividing Retirement Assets in a Divorce

Dividing Retirement Assets in a Divorce

Dividing Retirement Assets in a Divorce: Community or Separate Property?

What if the Retirement is Covered in a Prenup?

How Does Payout Work After You Divide Retirement Assets in a Divorce?

Do You Need to Talk to a Lawyer About Dividing Retirement Assets in a Divorce?

Retirement and Divorce Settlements

Retirement and Divorce Settlements

Retirement, Divorce Settlements and Separate Property

Retirement, Divorce Settlements and Community Property

Should You Hire a Pension Expert?

What is a QDRO?

Do You Need to Talk to a Lawyer About Retirement and Your Divorce Settlement?