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Can You Keep 100% of Your Community Property Retirement and/or Pension Benefits?

Can You Keep 100% of Your Community Property Retirement and/or Pension Benefits in a Legal Separation or Divorce Case in San Diego Family Law Court if Domestic Violence Is Proved per Family Law Code 4325 in 2019?

Under California law, which of course applies in San Diego, the traditional rule was always that pension benefits and/or retirement benefits would be divided equally. Whether a divorce or legal separation, an equal division would be ordered by the Judge absent very rare factors. As with many areas of the law in San Diego Superior Court [Family Law Division] laws change and this law change, effective on January 1, 2019, is one which may have significant impact to your case. The Law Office of Doppelt and Forney, APLC has experience in the division of retirement and/or pensions as well as parenting plans and spousal and child support and division of other assets and debts and can be reached at 800-769-4748.

Family Law Code Section has been in existence for many years however the recent changes in 2019 add sections which deal specifically with domestic violence vis a vis asset division. In the past, this section was used for considerations for spousal support and was widely used in Family Law Court in San Diego for a victim of domestic violence to not have an order to pay spousal support to their attacker. This only applied when the payee of spousal support was the spouse who committed domestic violence. In 2019, this domestic violence impact was expanded for property rights. This section only applies to convictions that occur after January 2, 2019 and is not retroactive for convictions so not ex post facto. A Judge could also consider whether a Permanent Restraining Order for DV was issued against the spouse.

Family Law Code Section 4325(d) states that, depending on the facts in any particular case, the Judge may determine that the spouse who is injured. This is a complicated analysis and many factors and on a case by case basis. Factors listed below:

  • Was there a domestic violence conviction of a misdemeanor as well as other documents instances of domestic violence, which is defined in Family Law Code Section 6211, either between the parties or perpetrated by either party against either the other parent or parent’s child?
  • What is the length of the marriage and when, based on evidence which is documented, domestic violence incidents as listed in Family Law Code Section 6211.
  • What is the extent to which the spouse who was convicted of any impairment to their earning ability [future or present] incurred during the marriage period which permitted the spouse who was convicted to devote time to duties which were domestic?
  • What is the extent of the convicted spouse’s contributions to the license, career position, training or education of the injured spouse?
  • What are the balance of any hardships to either spouse?
  • What are any other factors which the Judge considers to be equitable and just?

The Law Office of Doppelt and Forney, APLC offers a free and confidential consultation in their office for up to 30 minutes so you can get information you must have in order to make decisions whether to litigate or settle and also what are the best strategies for you to implement. The consultation will be with an Attorney who is licensed in California and has family law experience. Feel free to bring a list of questions and/or concerns to the complimentary virtual consultation so that you will not forget to ask.

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