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Dividing Retirement in a San Diego Divorce

On Behalf of | Dec 9, 2021 | Retirement Asset Division

How are retirement accounts, pension and social security handled in a Carlsbad Divorce? Dividing retirement in a San Diego divorce begins with the requirement for all retirement accounts such as 401k or pension plans to be divided equally based upon community property laws.  However, social security is considered “separate” property in a Carlsbad or Oceanside divorce and cannot be divided in a property division settlement.

A recent case highlights the issue in our State’s laws:

A husband and wife, both attorneys, are divorcing.  The husband has no retirement assets with the exception of his social security contributions over the years.  The wife has established and contributed to a 401k retirement plan.  The Court in their case ordered that the 401k would be divided equally between the two parties, but the social security was in fact the separate property of the husband.  The wife appeals, pointing out the “unfair nature” of this division. The appellate court sided with the trial court, and for the time being social security will remain separate property in a California divorce.

The experienced Certified Family Law Specialists at Burke and Domercq have extensive experience in complex cases such as these.  Dividing retirement in a San Diego divorce often requires a Qualified Domestic Relations Order or QDRO – a legal document ordering the division of a retirement account such as a 401k.

There may be other strategies to offset assets in cases such as this so that each party may retain their own retirement accounts while achieving a “fair and equal” division of their community property.  This is why it is important to work with our experienced Carlsbad-based family law attorneys.

Protect your own interests and contact us or call 760-389-3927 to schedule an appointment for a remote or socially distanced consultation with one of our experienced Certified Family Law Specialists.   Learn more about dividing retirement in a San Diego divorce and how community property division will impact your divorce.