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Law Offices of Benita Ventresca408-395-8822
20 S. Santa Cruz Ave., Suite 212, Los Gatos, CA 95030
Offering Limited Scope Service
Mediation and Litigation

Retirement Savings and Divorce

Posted on in Divorce

California divorce laws, California divorce attorneyAfter years of working and saving for a future for yourself and your family, you and your spouse have decided to end your marriage. During the divorce process, most clients immediately understand that the assets need to be divided. Assets include everything from debts to the money in the bank account, to the house and the items in the junk drawer (provided that it is not trash hiding in that collect all drawer). Assets also include that retirement plan on which you have been diligently working.

Who Gets the Retirement?

You earned the retirement, so naturally, you are hoping that you are the one who gets to keep the retirement plan. The reality is, retirement is an employment benefit, just like any income earned. Additionally, any profits obtained during the duration of the marriage up until the date of separation are a part of the community property. As you may know, California is a community property state, meaning that everything valued to be community property is divided equally between the two parties at the time of the dissolution of marriage.

How Is It Divided?

In most cases, the evaluation process is easy for a retirement plan. The participant of the benefit receives monthly, quarterly and annual statements to update them on the status of the program. There are steep penalties for withdrawing from the plan early to persuade participants to keep that money set aside. Fortunately, there are options available to be able to divide these assets while avoiding the harsh tax penalties. These provisions are

  • Qualified Domestic Relations Order (QDRO): This is a tool that was created as a part of the Employment Retirement Income Security Act of 1974 and allows the state to divide any benefit plan between two divorcing spouses.
  • In-Kind Division: After everything is divided, one spouse can keep the retirement benefits and give up something of equal value to the other spouse rather than dividing the retirement itself.

Divorce and property division is a strenuous and confusing process. If you have made emotional mistakes during your marriage, the last thing you want to do is to make another false step that will negatively affect the rest of your life. An experienced divorce attorney can be a voice of reason not to let your emotions get the best of you and also to answer difficult legal questions that you may have, like how to value your retirement plan. If you are interested in discussing your situation with a Los Gatos, CA divorce attorney, call the Ventresca Law Firm today at 408-395-8822 to schedule your free initial consultation.



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Law Offices of Benita Ventresca

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

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Conveniently located in downtown los gatos and
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