Frequently Asked Questions
Divorce law can be a complex topic for those unfamiliar with the field. At the law firm of Fischer & Van Thiel, LLP, we have taken it upon ourselves to ensure that you are familiar with each issue that arises in a divorce.
401K plans and divorce
If my spouse waives his right to my 401k plan, is there any circumstance that the court will still award him half or a portion of my 401k plan?
It is theoretically possible that a court can disturb an agreement to waive rights to property, but it is unlikely. Courts will generally treat agreements as contracts, and thus are likely to strike an agreement only if it is unconscionable, induced by fraud, undue influence, duress or is against public policy. The judge cannot “reject,” nullify, or modify the provisions of an agreement merely because of his or her personal belief that a different arrangement should be made.
A marital settlement agreement, or MSA, can be used as a contract between spouses regarding the division of property that would otherwise be subject to community property laws. An MSA is subject to general contract laws, meaning that it can be found invalid if terms are against public policy (which includes, but is not limited to, (a) abrogating the statutory child support duty or impinging on the court’s jurisdiction to award child support, (b) limiting the court’s exercise of child custody jurisdiction, (c) “altering legal relations,” (d) “promoting dissolution,” and (e) providing for “fault”-based penalties at marriage dissolution) . The MSA can also be found invalid if entered into as a result of fraud, duress, menace, undue influence, or other factors which may make the agreement void or invalid. Generally, an agreement such as the MSA is favored. Hence, if there are no legal or equitable grounds for rescission or reformation it is binding on the parties and the court without express approval.
After our divorce becomes final, am I entitled to any of my ex-spouse’s Social Security, retirement, or disability benefits?
Anything that was accumulated before the date of separation is part of the common property of the marriage. However, anything after the date of separation can not be claimed by the ex-spouse.
Q: What is the determination concerning what rights do each of us have as far as allowing others (her 22 year old son) to live in our house? Thank you. We divorced but own a house together. She has allowed her 22 yr old son to move back in.
This is something that should have been spelled out clear in your divorce judgment. There should be a provision in either your marital settlement agreement or stipulated judgment that lays out what the rights are regarding the house. The house is owned by both of you, so she must have been given exclusive use of the home. I would check your judgment and see if there are any provisions in there restricting who else could live there. If the judgment reserved jurisdiction over the house to make further orders, then you can file a motion asking for specific orders that the son not be allowed to reside in the house. You would need to have evidence to support why he shouldn’t be able to live in the house.
Q: During a divorce and separating finances, will the joint bank accounts with just me and the children be split as community property? Or will they remain untouched? Main concern that the savings I, alone created for the kids have to be split with the respondent party?
This account would be community property. It was funded with community money, therefore it is community property. Had you set up the account as a trust for the benefit of the children, you could preserve that account as the children’s. You can definitely try and argue that it is the children’s money especially if you had proof that the account was established for the children and your spouse knew of this arrangement and agreed to it. You could also sit down with your spouse and ask that you both enter into a stipulation that the account be maintained for the children. He may agree to it, if not you will have to litigate this matter.
Q: Will a divorce court do an investigation to find out which assets I have in California? For instance, could they find out that I have a 401k?
The court itself does not do an investigation to find out what assets you have in California. However, during a marriage dissolution you are required to truthfully and fully disclose all of your assets and debts, including your 401k. There are consequences for failing to disclose all of your assets including having the judgment set aside, having the asset that was not disclosed given in its entirety to the other party and monetary sanctions. It is very important to be truthful in every step of your dissolution as every form you sign, is signed under penalty of perjury.