In Divorce, Understand Your Spouse’s Retirement Portfolio

The divorce process can lead some couples to focus solely on their present problems, but it is important for spouses to set their sights on the future as well. In addition to planning for issues such as child support, spousal support and division of obvious assets and debts, spouses should be aware of the location and value of all retirement accounts.

Whether a couple has a high net worth or is making a middle-class living, chances are that one or both spouses have retirement savings. California is a community property state, and each spouse is generally entitled to half of what the other spouse earned during the marriage.

The Funds

A husband or wife who is facing divorce should take stock of his or her own retirement accounts, including a 401(k), Individual Retirement Account (IRA) or company pension.

Perhaps more urgently, however, the spouse should investigate his or her partner’s retirement accounts. It is quite possible for a husband or wife not to be able to instantly call to mind a spouse’s various retirement savings and investment plans. But failing to do some detective work could lead to losing access to what rightfully should be divided.

Spouses should also be watchful to ensure that the other person does not make an early withdrawal from the account. Some record keepers for retirement accounts will flag accounts during divorce so that withdrawals cannot be made.

It may be wise to take a present payment, instead of waiting for a pension to pay out in the far-off future. 401(k)s, for instance, have a provision allowing an alternate payee to make a penalty-free withdrawal upon division.


For a retirement plan to be divided, the court must make a Qualified Domestic Relations Order (QDRO). The QDRO outlines who gets what, when and how.

It is vital that the QDRO be properly drafted, addressing the points the plan administrators need to see. If the QDRO is insufficient, the spouse who expects to receive a portion of the retirement account will not be able to get it. This is why it is so important to work with an experienced San Diego divorce lawyer.

The Value of Counsel

If you are contemplating divorce, contact a San Diego family lawyer soon. A knowledgeable attorney can help you locate and assess your spouse’s retirement accounts and work to make the transfer of assets go smoothly.