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Los Gatos, CA divorce attorney for 401(k), IRA, pension plansWhen getting a divorce, you will need to address a wide variety of complex financial issues. Since California is a community property state, the property division process will need to address all of the assets and debts you acquired during your marriage and ensure that you and your spouse each receive an equal share of the marital estate. Retirement savings accounts and pension plans can often complicate asset division. These assets will need to be properly valued, and the right procedures will need to be followed when dividing them between you and your spouse.

Using a QDRO to Divide Retirement Accounts and Pensions

Retirement savings often represent some of the most valuable assets owned by a married couple. These may include employer-sponsored retirement plans such as 401Ks or individual retirement accounts (IRAs). In some cases, the full balance in an account may be considered marital property. However, if one spouse contributed to an account before getting married, some of the funds in the account may be considered separate property. The assistance of a financial expert may be needed to determine the value of an account at different points in time and establish the marital portion of these funds.

Determining the value of a pension plan can often be even more difficult, since the amount that a person will be able to receive in pension benefits may not be known until they reach retirement age. The actual value of these benefits will depend on the amount of income a person receives, the amount of time they worked in a pension-eligible position, and the number of years they expect to receive benefits after retiring. A person’s ex-spouse will be entitled to receive a percentage of their pension payments, depending on the amount of time they were married while working in the job where they earned these benefits.

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Los Gatos divorce lawyer for hidden assetsThe divorce process can be very complicated, and it requires spouses to navigate a variety of legal and financial issues as they work to dissolve their marriage. While you are dealing with the stress of separating your life from your spouse, the emotional trauma that comes with the end of a long-term relationship, and the fallout from contentious disputes over child custody and other issues, it can be easy to neglect what seem like the smaller details of a divorce. However, it is also important to protect your rights, and if you are worried that your ex is attempting to hide assets and unfairly influence the financial decisions in your divorce, you will want to understand your legal options.

Addressing Concerns About Hidden Assets

California is a community property state, which means that divorcing couples are required to divide marital property equally. However, some spouses may try to hide assets to avoid having to divide certain pieces of property. A spouse may do this in an attempt to punish their spouse because they blame them for the end of the marriage, or they may believe that they are entitled to a greater share of assets based on the income they earn or their contributions to the relationship.

Regardless of the reasons for hiding assets, doing so is illegal, and a spouse could face penalties if these activities are discovered during the divorce process. A spouse may be required to pay fines or cover the other spouse’s attorney’s fees in legal proceedings related to concealed assets. In some cases, a spouse may even forfeit the rights to a concealed asset, resulting in the other spouse receiving a greater share of the marital estate.

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Santa Clara County cohabitation agreement lawyerMany Californians have a positive, do-it-yourself attitude. However, there are some areas in life where expert assistance is necessary, and drafting a cohabitation agreement is one of them. Cohabitation agreements can be used to protect the rights of unmarried couples, including in the event the couple splits up. There are many “fill in the blank” cohabitation agreement forms floating around on the internet, and some people might be tempted to use one in hopes of minimizing legal costs.

Although married spouses have many rights under the law, unmarried couples do not have these same rights. A cohabitation agreement can be crucial to ensure that both partners will avoid difficulties and disputes in the case of a breakup, so it absolutely must be thorough and complete. Some reasons why using an online cohabitation agreement template may not be the best idea include:

You Might Forget Something in Your Agreement

Cohabitation agreements cover a variety of issues, including:

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Santa Clara County prenuptial and postnuptial agreement attorneyMany people assume that they do not need a premarital or postnuptial agreement in place, because those types of arrangements are only for wealthy individuals who have been previously married. Others may believe that bringing up the topic of a marital agreement with their fiancé or spouse will lead to distrust. However, these myths could not be further from the truth. In fact, these agreements can help provide a couple with peace of mind, and they can establish financial expectations that will help couples avoid disagreements later on. Many couples also find that simply sitting down and discussing certain issues is a helpful process that fosters communication about money and provides a path toward a healthier financial life.

In addition, statistics show that millennials are waiting longer to get married, which means that they are bringing more assets into their marriages, including bank and investment accounts, real estate, savings accounts, stock options, retirement savings such as 401(k) accounts, etc. These couples may also bring in student loan debt and the introduction of other complex issues, such as pet custody and the disposition of frozen embryos upon divorce. As a result, there has been a sharp uptick in the number of requests for “prenups” in recent years. However, these agreements can be challenged in court if certain mistakes are made and they are improperly drafted without the assistance of an experienced attorney. Some of the most important mistakes to avoid include:

Unfairness

First and foremost, marital agreements must be fair and in compliance with the law. Premarital and postnuptial agreements cannot unreasonably favor one party or place one spouse in an untenable financial position in the case of divorce. In addition, there are certain issues that cannot be addressed in a marital agreement. For example, a prenup cannot make decisions about child support, because this is a legal obligation that is determined at the time of a divorce or separation based on what is in a child’s best interests. 

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Santa Clara County cohabitation agreement attorneyStatistics show that more and more couples are delaying marriage or deciding to live together without getting married; in fact, the percentage of adults who have lived with a romantic partner is not only greater than those who have been married, it is the fastest-growing “family type.”

Still, California – like most states – does not recognize common law marriage (i.e. an arrangement where a couple lives together in a relationship similar to being married without actually getting a marriage license), which means that cohabiting couples do not have the same legal rights as married couples. As a result, if an unmarried couple eventually separates, they may encounter costly disputes. To avoid this type of situation, a couple may choose to create a cohabitation agreement, which is similar to a premarital agreement. These agreements can compensate for a lack of protection provided by state law by addressing the following issues:

Property Division

When it comes to the division of property for cohabiting adults, only assets that are in both parties’ names will be considered joint assets. Disputes can arise if one party claims that an asset was purchased using joint assets, one party purchased an asset with the understanding that it belonged to both parties, or one party who does not own the home where the couple lives claims that they still own a share of the equity in the home. 

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Law Offices of Benita Ventresca

20 S. Santa Cruz Ave., Suite 212
Los Gatos, CA 95030

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