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Proceeding into Divorce aware of risks regarding retirement division

When you decide to file for divorce and select an attorney to help guide you through the process and advocate for your rights along the way the most powerful tool you have at your disposal is your ability to discern with whom you can place your trust. After all, it’s unlikely that you are an attorney and you have probably never hired an attorney in any capacity on top of that.

You will need to rely on your instincts and your impressions formed of any attorney after having met with him or her in person. Only after getting a feel for how different divorce attorneys approach your case can you have enough information to make a decision on which to hire.

With all that said, once you finally do hire an attorney there are some potential pitfalls that you and your attorney can avoid with proper guidance and teamwork. Today’s blog post from the Law Office of Bryan Fagan, PLLC will discuss how to proceed with a clear vision of what you want to achieve in a divorce while keeping an eye out for potential danger along the path towards achieving your goals.

Provide information to your attorney early on about your spouse’s retirement benefits

This is especially relevant if you are an “older” person going through a divorce (50 years old and up) and have a spouse who has been fortunate enough to have been engaged in a career for multiple decades.

Odds are good in that case that he or she has at least one retirement account to their name with a substantial amount of money in each. These funds are likely to be considered community property depending on how long your marriage has lasted, but to be able to divide them you must first take action.

First and foremost, be sure to notify your attorney of any retirement accounts that your spouse has or may have early on in your divorce. Even if you don’t know for sure what kind or where the account is being held notify your attorney.

Your attorney can contact your spouse’s attorney and see if a “gentleman’s” agreement can be reached to disclose any and all retirement in exchange for you doing the same. Otherwise, a discovery request where the names and sources of any retirement funds can be asked for and directed to your spouse’s attorney.

Typically each retirement plan will have information that tells you the rules or guidelines for contributing, disbursing and dividing funds. This is important because at the conclusion of your divorce a Qualified Domestic Relations Order (QDRO) will be drafted and sent into each retirement plan that is to be divided in the divorce.

Learning how this document will need to be sent in can save time and money down the line for you. If your spouse’s plan restricts your ability to receive your divided portion of the account you ought to learn that now so you and your attorney can decide how to proceed. Knowing this information will affect how you negotiate in mediation.

Coinciding with our first mistake to avoid in a divorce, make sure that your attorney learns of each retirement fund available to you in the divorce and then collects information about each of them.

Many employers provide pension, 401(k) or employee stock ownership plans (ESOP) to their employees simultaneously. While your spouse may have just referenced a retirement account as a single entity to you during your marriage it may have actually been multiple accounts all along.

It is then up to your attorney to determine whether each is community property or the separate property of your spouse. If any money was contributed to the account during your marriage those portions are considered to be community property and are subject to division in your divorce. Your attorney can request this information from your spouse in the form of discovery requests.

The same type of rules applies to prior employers of your spouse. If he or she worked at a job for years and has an old 401(k) that was never rolled into an Individual Retirement Account (IRA) or simply cashed out, your attorney will need to make sure that this account is accounted for as well (no pun intended).

Your lawyer should advise you of how retirement benefits are divided in a divorce in Texas

You may have a vague or general understanding of how retirement benefits are divided in a divorce in Texas but unless you have concrete and specific knowledge how can you make a decision for yourself?

A family law attorney will be able to tell you how your particular situation should play out if it comes down to a judge making a decision on dividing up a retirement account. At the very least he or she can provide you with a range of expected outcomes so you can approach your case from that perspective. How long it takes to receive your portion of a retirement account, any costs that you would incur along the way and other information like this can be discussed.

Ultimately, in Texas, a divorce is likely to be settled prior to trial. This means that your attorney will be advocating and negotiate on your behalf both informally and in mediation. Make sure that he or she is aware of your goals and concerns so that negotiations can prove fruitful.

Additional tips for avoiding mistakes in the context of retirement accounts and divorce to be posted tomorrow

While this may not be the most exciting subject matter in the world when it comes to divorce, learning about avoiding mistakes in the context of retirement accounts can end up being some of the most important information you receive prior to starting a divorce.

The attorneys with the Law Office of Bryan Fagan stand ready to advocate for you and your rights. Contact us today to schedule a free of charge consultation to learn more about divorce, family law and the services we can provide to you as a client of our firm.


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Other Articles you may be interested in:

  1. Individual Retirement Accounts (IRAs) and your Divorce: Taxes and General Information
  2. Social Security division in a Divorce
  3. Will Social Security Benefits play a substantial role in my Texas Divorce?
  4. Is Social Security Considered Separate Property in a Texas Divorce
  5. Key Elements of a Divorce for persons over the age of 50
  6. 7 Tips for Divorcing After Age 50 in Texas
  7. Divorcing After Age 50 in Texas: What it Can Mean for You and Your Spouse
  8. Texas Divorce and Retirement & Employment Benefits by the Numbers
  9. Is Social Security Considered Separate Property in a Texas Divorce?
  10. Will My Spouse Get Part of My Retirement in Our Texas Divorce?
  11. Husband Loves His Wife and Wants a Divorce in Texas “On Paper” for Strategic Financial Reasons?
  12. Roadmap of Basic Divorce Procedure in Texas
  13. 6 Mistakes that can Destroy Your Texas Divorce Case

Law Office of Bryan Fagan, PLLC | Houston, Texas Divorce Lawyers

The Law Office of Bryan Fagan, PLLC routinely handles matters that affect children and families. If you have questions regarding divorce, it's important to speak with one of our Houston, TX Divorce Lawyers right away to protect your rights.

Our divorce lawyers in Houston TX are skilled at listening to your goals during this trying process and developing a strategy to meet those goals. Contact Law Office of Bryan Fagan, PLLC by calling (281) 810-9760 or submit your contact information in our online form. The Law Office of Bryan Fagan, PLLC handles Divorce cases in Houston, Texas, Cypress, Klein, Humble, Kingwood, Tomball, The Woodlands, Houston, the FM 1960 area, or surrounding areas, including Harris County, Montgomery County, Liberty County, Chambers County, Galveston County, Brazoria County, Fort Bend County and Waller County.


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