Retirement Assets

How are Retirement Benefits Divided in Divorce?

During the resolution of a divorce, pensions, 401(k)s, annuities and other retirement fund vehicles must be valued and properly divided. Some pension assets can be immediately available for reinvestment once the divorce is finalized; other types of pension assets cannot be distributed until the earning party has reached pay status (retirement age). No two divorces are exactly the same but I am prepared for every possibility including rare instances where pension assets are an issue.

While traditional pensions are provided by very few companies to their current workforce, some couples may still have such assets. In order to divide these marital assets properly, an actuary or accountant may need to be consulted. Although only one party may have earned the pension or retirement fund asset, if it was earned during the marriage, it is marital property according to California divorce law.

On the other hand, retirement assets earned before the marriage or after separation can be considered separate property and are not subject to division. Occasionally a retirement asset may contain both separate and community components. Your separate contributions together with any growth or loss will remain your separate property.

As a divorce lawyer with extensive experience, I have addressed the question "how are retirement benefits divided in divorce?" many times before. I have answers but must first perform an analysis of your particular situation. Once it has been determined how much of the pension or other asset is indeed a marital asset, the next step is determining the proper value of the asset. Several factors can complicate that determination:

  • If one spouse dissipated the retirement fund by illegally removing assets (which may have occurred at any time during the marriage).
  • If one spouse used separate property assets from a retirement fund to pay marital debt, that spouse may be eligible for reimbursement upon debt division.
San Jose Divorce Lawyer and Retirement Asset Attorney John S. Yohanan

As a San Jose Divorce Lawyer I have had more than three decades of experience guiding my clients through the divorce process. Many of my clients have complex tax issues, extensive financial portfolios, and retirement accounts that must be considered during the divorce process. No matter the situation you are facing, I have answers and advice.

If you want a divorce lawyer with more than 30 years of experience on your side, contact John S. Yohanan. For guidance on how to secure a fair share of community property assets, how to establish separate property interests, fairly divide retirement benefits, and how to protect property rights in divorce, call 408-297-0700.

Bay Area Divorce Attorney Blog - Retirement Assets