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Are you entitled to a spouse's retirement plan when you divorce?

Many people who have retirement accounts work their whole lives and contribute significant amounts of their paychecks to make sure that they have enough to live one they choose to walk away from the job force for good. This is often why any conversations that involve a spouse laying claim to their husband's or wife's retirement account generally don't go too well. These discussions often become heated and bring divorcing couples to a divorce attorney's door.

A retirement account isn't treated any differently from an investment portfolio, real estate or valuable collections when a couple divorces here in California. All of these are considered as marital property so long as they were contributed to or acquired during a marriage. This means that, unless you can prove that you owned them before your marriage or have some type of prenuptial or postnuptial agreement in place, then you're likely entitled to stake a claim to a portion of each of them.

Qualified Domestic Relations Orders (QDROs) are court orders that Murrieta family law judges sign off on to legitimize how retirement plan proceeds will be allocated post-divorce. If your former spouse has agreed to have their alimony or child support obligations deducted from their retirement account, then it's important that the QDRO clearly states this.

You should also have your attorney draft the QDRO to reflect any other monetary payments that you plan to accept instead of the property once your divorce is finalized. If you're slated to receive regular payouts in exchange for you relinquishing your share of the family business or the home, then you'll also want that documented in your QDRO.

QDROs are only applicable to retirement plans that are covered under the Employee Retirement Income Security Act (ERISA). A QDRO serves as one of the only ways that a retirement plan participant can lawfully assign any of the proceeds in their account to someone else other than oneself. A property division attorney can help you and ex broker a deal for how to best split up your assets and liabilities such as retirement plans in your California divorce case.

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