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San Jose Family Law Blog

Splitting an IRA in divorce after getting distributions

People in San Jose who get a divorce and who need to split a defined benefit pension plan or a qualified retirement plan need a document known as a qualified domestic relations order. If they have retirement savings in an IRA, they simply need a copy of the divorce decree to have the account divided.

However, some people take withdrawals from their IRA before they reach the age of 59 1/2. Normally, this would incur a 10% penalty, but there are certain situations in which it is permitted without a penalty as long as no further modifications to the account are made. The IRS does not specifically address whether dividing the account because of a divorce counts as a modification, but as its regulations describe a modification, it would seem as though it does.

Tips for an amicable divorce process

People who are considering divorce should take a number of steps to protect themselves, including educating themselves about the divorce process in San Jose. They may also want to consider getting a therapist. This gives the person an outlet to discuss the emotional issues around the divorce.

People also need to get a handle on their marital finances and their own financial situation. This includes having a plan to deal with health insurance since many people are covered under a spouse's plan. Consulting an attorney can help people understand how the divorce may proceed, including a potential time frame. In addition to a therapist, self-care is important as well. People should make sure they are getting enough sleep, eating well and exercising.

Co-parenting tips to ease the stress on you, your children

Divorce will alter the course of your life, often leading you down an unexpected path. While you may have the life skills and experience to deal with anything that comes your way, your children aren't always in the same position.

Life after divorce is particularly difficult on children, as it will call for a variety of changes that can result in instability.

That 2019 calendar might hold significant info

If divorce and a child custody fight are looming for parents in California, last year's calendar may hold important information. Since these types of situations can become difficult, it is helpful to gather as much supportive material as possible. Calendars generally provide details that may not otherwise be forthcoming at the moment the information is needed during intense litigation.

The courts appreciate being supplied with the facts. A calendar may show things like children's medical appointments throughout the year and their extracurricular activities. This sort of information can be very helpful in the course of a child custody dispute. A calendar may show not only appointment and activity scheduling, but some parents may also jot down the costs associated or who transported the child.

Dealing with international custody disputes

There are many Californians in relationships with people from other countries. If these international couples split up after having kids, some unique custody situations may arise. For example, one parent may abduct their child and move abroad. This could leave the other parent feeling like they have no avenues for recourse.

Their options will depend on a variety of factors, including the other country's laws. The Hague Convention on the Civil Aspects of Child Abduction, a treaty ratified by 98 nations in 2018, set up parameters for what needs to be done if a parent takes their child without court permission to a different country. One of these parameters is that the child must be brought back to their country of 'habitual residence" and that that country establishes custody rights. Of course, this can only be enforceable when the countries are part of the treaty. Additionally, a country's own laws regarding parental rights can also affect how this type of situation will be handled.

Planning finances for a potential divorce

While few people like the idea of getting a divorce, the reality is that around 39% of marriages in the United States will end in divorce. California residents may be interested in steps they can take to prepare themselves financially for a divorce, which could minimize the financial impact of it.

The first step a person would want to take is understanding their assets. This is especially important for an individual who has not played a large role in caring for the family's finances. They should gather bank statements, pay stubs, property deeds, outstanding loans, credit card statements and investment and retirement account information. Having access to all of these documents will allow them to truly understand where they sit financially.

Getting through the holidays with children after a divorce

The holiday season is a difficult time for many people, and this can be particularly true for parents in San Jose who have been through a divorce recently. Parents may not know how to approach the first holiday season with their children. It is important to focus on their children's needs and not on their own conflicts.

Parents should avoid making assumptions about what their children would prefer during this time. They should talk to the children about their expectations for the holidays and what traditions they would like to retain. Parents may not be able to do things together during the holidays, but they should make an effort to be kind to each other and preserve some of the things the children want.

Your mental illness does not preclude you from having custody

There's a saying that it's not paranoia if people really are out to get you. Those living with mental illness may understand that well if their exes or others are seeking to deny them custody of their kids due to their diagnoses.

Of course, every situation is different and nuanced. An actively schizophrenic parent who is off of their meds can indeed be a danger to their children. But someone who struggles with anxiety and depression who is in treatment and compliant with their medication schedule likely is not.

Dealing with retirement assets in a divorce

The overall divorce rate in California and around the country has remained fairly stable in recent years, but the number of divorces involving couples over the age of 50 has soared. Property division negotiations are often complex in gray divorce cases as older spouses tend to have more valuable marital estates, and deciding how to deal with retirement savings that have been diligently built over decades can be especially thorny.

Retirement assets can be generally divided into plans with defined contributions like 401(k) accounts, plans with defined benefits like pensions, and individual retirement accounts. IRAs can be dealt with like any other marital asset, but a judge must issue a Qualified Domestic Relations Order to divide defined contribution and defined benefit plans. The government encourages retirement planning by offering tax breaks, which may be lost if these funds are accessed by individuals younger than 59 1/2 years of age. However, tax benefits can usually be protected by rolling money from a 401(k) or IRA account into a new retirement plan.

Highest-ranking concerns women have after divorce

Worry about judgment from family and friends, emotional pain associated with giving up the dream of a happy marriage and worry about the welfare of the children are all things that make the divorce process difficult for both men and women. Some people in California may be surprised to learn that while there are similar ways that divorce affects men and women, there are also some differences.

Many women who have gone through a divorce have financial problems. Women's median income is 81% of that of men in the United States. Women are also likely to experience a decrease in their income after divorce and are more likely to be below the poverty line than men. Getting serious about budgeting is essential for women after a divorce. The sooner a woman can adjust to a new budget based on just one income, the better. It may be beneficial to speak with an accountant or financial adviser in order to get a firm grasp on where she sits financially and learn how the divorce will affect her insurance, taxes and retirement benefits.

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