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San Jose Divorce Attorney > Blog > Property Division > How Are Retirement Accounts Divided In California Divorces?

How Are Retirement Accounts Divided In California Divorces?


When spouses who are getting divorced in San Jose have retirement accounts or pensions, it is important to understand that these assets usually must be distributed between the parties in a manner that is different from other types of assets. While retirement accounts and pensions will also be identified as separate property or community property (and community property will be divided), the method for distributing these assets is distinct from the method for distributing other types of community property. More specifically, the parties usually need to obtain a Qualified Domestic Relations Order (QDRO) or a Domestic Relations Order (DRO) in order to distribute the assets. Our San Jose property division lawyers can explain in more detail.

Understanding Retirement Accounts and Pensions in California Divorce Cases 

Pensions or retirement accounts are often classified as community property in a San Jose divorce since the participant spouse contributed to the account during the marriage. Retirement accounts and pensions can include a wide range of accounts, which you may see described as one of the following:

  • 401(k) plans;
  • 403(b plans);
  • CalPERS;
  • LACERA and other state or federal retirement plans;
  • Employee benefit plans;
  • Defined contribution plans;
  • Defined benefit plans; and
  • Federal Employees’ Retirement System plans.

The following are just some types of retirement accounts or pensions that will be considered community property in a divorce case and will need to be divided between the spouses. There are other types of plans that may also be considered retirement or pension plans and will need to be divided accordingly. Assets in any retirement or pension plans that were earned or that accrued during the marriage will be considered community property and will be subject to a 50/50 division between the spouses.

Dividing Retirement Benefits with QDROs and DROs 

Unlike other types of assets or bank accounts, most retirement accounts or pensions will need to be divided with a QDRO or a DRO. Since retirement accounts and pensions require a person to be at retirement age to withdraw any amount of money (without incurring a penalty), there are specific requirements for withdrawing an amount for purposes of community property division in a divorce without incurring that 10 percent penalty. A QDRO or a DRO is a special type of court order that is used to divide a retirement plan. Generally speaking, a QDRO is used to divide a private retirement plan, while a DRO is used to divide a state or federal retirement plan.

Often, in order to divide these accounts with a QDRO or a DRO, it will be necessary to add the retirement plan manager to the divorce case through a “joinder.” This process is complex, and it is important to have help from an experienced lawyer.

Contact a San Jose Property Division Attorney Today 

Dividing retirement benefits or pension plans in a divorce in California can be quite complicated, and it is essential to work with a lawyer who can assist you throughout this process. Do not hesitate to get in touch with one of the experienced San Jose property division attorneys at Foster Hsu, LLP to learn more about how QDROs and DROs work, and how we can assist you with the division of community property in your divorce.




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