QUESTION
Is a retirement fund awarded to me from my first marriage considered community property?
Asked on Mar 06th, 2013 on Divorce - Arizona
More details to this question:
When I divorced my first spouse, I was awarded half of his retirement fund and half of the money from selling our house. I did not receive the actual funds until after I had remarried. Because of this, I established a college account for my son with the money from the house and rolled my portion of my first spouse's retirement fund into a retirement fund for me. I did not establish these prior to my remarrying because I did not receive the actual money until after I had remarried. Is this money considered as my money prior to my current marriage? Or is it considered community property with my current spouse who is suing me for divorce and wanting half of everything?
8 ANSWERS
General Practice Attorney serving Crystal Lake, IL
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Bruning & Associates, P.C.
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Thank you for your important question. Illinois is not a community property state, and therefore the retirment from your first marriage is not community property. Nor is it marital property in Illinois, because it was obtained prior to the marriage even though the money was paid after you were married.
Answered on Mar 07th, 2013 at 1:01 PM
Criminal Law Attorney serving Sacramento, CA
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Alison Elle Aleman
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Since you were actually awarded half of this retirement fund from husband #1 before you married husband #2, that retirement fund is your separate property you had prior to marriage #2. However, if you co-mingled community funds from marriage #2 into the retirement account with husband #1's retirement, then part of the fund is actually community. The portion that is community, if any, can be calculated by an actuary who specializes in retirement accounts.
Answered on Mar 07th, 2013 at 1:00 PM
No, those funds are not community and will not become community so long as they remain segregated from your community assets with your present spouse.
Answered on Mar 07th, 2013 at 12:57 PM
Divorce Attorney serving Frisco, TX
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Mackoy, Hernandez, Jones and Woods LLP
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Property that you owned prior to the current marriage is separate property if you can trace that property into whatever form it currently may be. I suggest you hire a lawyer.
Answered on Mar 07th, 2013 at 12:57 PM
Divorce/Family Law Attorney serving Carlsbad, CA
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Anne B. Howard, A Professional Law Corporation
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It is your separate property but you have to prove it. If you put it into a joint bank account then you have commingled it and he can get half. You need to trace the funds from their separte source into each bank account/retirement fund. The burden to prove it's separate is yours, the court presumes it's community.
Answered on Mar 07th, 2013 at 12:56 PM
Generally speaking, anything you were awarded prior to your current marriage would be considered your separate property (even if you didn't "receive" it until after you remarried); however, if you have put any of those "separate" funds into a joint account (or put any joint funds in to the separate account where the separate funds were being held), that might affect the characterization of the property. I recommend you consult with an attorney to discuss this matter in greater detail.
Answered on Mar 07th, 2013 at 12:56 PM
Alternative Dispute Resolution Attorney serving Chandler, AZ
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Cox Sandoval Law, PLLC
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I would argue that it is traceable and is sole and separate. You would have to be sure you can show that it was not commingled with community funds. If you were dipping into these accounts it could be arguably community. I would suggest meeting with an attorney to discuss in more detail.
Answered on Mar 07th, 2013 at 12:56 PM
No unless you added to that fund during your marriage from you efforts. Normal increases due to dividends, interest, etc. are not included in "efforts".
Answered on Mar 07th, 2013 at 12:56 PM