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JD 1992
JD 1992, Lawyer
Category: Family Law
Satisfied Customers: 33911
Experience:  Began practicing Family Law in 1992
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Question - i have remarried in june 2012 so i am married

Customer Question

question - i have remarried in june 2012 so i am married for 4 years. I am 56 years old and have a lucrative pension where I can collect a lump sum at the end of 2016. My wife and I are both professionals and have kept seperate bank accounts before and during the marriage. If i take this lump sum, which is in excess of $1million, would it be possible for her to claim 50% of it if we were to get divorced in 2017? I earned it over the past 28 years at my company but if it gets paid to me while married, does she have 50% rights to those funds? we currently live in CA, if the state makes a difference?
Submitted: 1 year ago.
Category: Family Law
Expert:  JD 1992 replied 1 year ago.

Hello and thank you for contacting us. This is Dwayne B. and I’m an expert here and looking forward to assisting you today. If at any point any of my answers aren’t clear please don’t hesitate to ask for clarification. Also, I can only answer the questions you specifically ask and based on the facts that you give so please be sure that you ask the questions you want to ask and provide all necessary facts. Please note: This is general information for educational purposes only and is not legal advice. No specific course of action is proposed herein, and no attorney-client relationship or privilege is formed by speaking to an expert on this site. By continuing, you confirm that you understand and agree to these terms.

Was she married to you during the time in which any of the pension was earned?

Customer: replied 1 year ago.
Very short period of timeMarried june 2012
Pension was frozen 1/1/2016 so we were married for 3.5 years of this pensionThe total time I have been employed and contributing to the pension is 27 years
Expert:  JD 1992 replied 1 year ago.

She would be entitled to 50% of the pension benefits accumulated during the time you were married.

The problem is that the benefits don't actually get divided until there is a divorce or a death.

If the pension benefits were all yours then taking them out and keeping them in a separate account wouldn't convert them into community/marital property. However, since a portion of them are already marital/community property it raises an issue.

What I'd suggest you do is visit with a local family law attorney and have them draft a "post nuptial agreement" establishing exactly what amount is community property and what amount is not and having her sign off that she agrees with those figures and is not now or ever going to make a claim against any amount that is your separate property (and specify exactly what that amount is).

Then, when you get the funds put the separate property amount in a bank account with your name "as separate property" and don't ever add anything to that amount so it is clear nothing is co-mingled. You should even take the interest that it draws and have it go into a different account.

This is as much protection as it is possible to get under your facts and without going through a divorce or a formal lawsuit and hearing.