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Dividing 401ks and Pensions in a Carlsbad Divorce

On Behalf of | Aug 25, 2019 | Community Property Division

What is the process for dividing 401ks and pensions in a Carlsbad divorce proceeding?  Many people do not initially think about retirement plans as part of community property division.  Many DIY divorces come to a complete halt when questions regarding 401ks, pensions, profit-sharing plans,  State or Federal retirement come about.  What do you need to know?

Retirement plans are almost always a part of the community property discussion during a Carlsbad divorce.  These are often some of the most valuable assets each party in a divorce may own.  As a result, the process for calculating the division of these accounts and creating enforceable orders to do so becomes one of the critical issues in many divorce cases.

Generally speaking, dividing 401ks and pensions in a Carlsbad divorce is actually a separate legal process within the divorce itself.  There are special forms which must be approved by the retirement account administrators and submitted to the Court known as “Qualified Domestic Relations Orders” or QDROs.  A QDRO is a very technical legal document which describes in detail how the retirement assets are to be divided and ultimately distributed between the parties.

Retirement assets are almost always part of the community property and as such must be divided equally between the parties.  In many cases, the parties may wish to manage dividing 401ks and pensions in a Carlsbad divorce as a separate matter altogether.  There may be an agreement between the parties to offset the community interest in a retirement vehicle with some other asset (such as the equity in a home).  The “Settlement Agreement” and ultimately the final judgment may include a description of how these assets are to be divided, but the QDRO is the actual legal document which directs plan administrators on how it is to actually be accomplished.

Even if the funds in your retirement vehicle are not to be divided there is still the legal issue of removing your former spouse’s community property rights.  These are complex issues regarding experienced, capable attorneys.  We invite you to review the strong recommendations of our clients and the legal industry and contact the Certified Family Law Specialists at Burke & Domercq or call 760-389-3927 to learn more or schedule an appointment.  It is crucial to get these complex issues and documents right in order to protect your short and long-term interests.