Q: Does a waiver of right to collect retirement benefits include new plans and contributions made during the marriage?
A California prenuptial contains the following clause.
"Each party agrees to execute a waiver of his or her right to collect benefits under the other parties qualified retirement plan or plans, if applicable."
Could this be interpreted to mean only those accounts that existed before the marriage and that any new accounts and contributions made during the marriage would still be considered community property?
If so, how would one go about demonstrating this in a North Carolina court? Can it be done by affidavit from a California attorney or would a California attorney need to be enlisted as an expert witness?
A:
This is a contract issue and a matter of interpretation of the agreement. By the terms quoted it is ambiguous, meaning it has two possible meanings. The real question will be what was the parties intent at the time the agreement was entered. It is poorly drafted as this contingency should have been accounted for which would have eliminated any interpretation issues.
Generally, after acquired property will be considered marital and therefore divisible.
Contact an experienced family law attorney to review your document and advise your accordingly.
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A: If the agreement had been drafted properly, it wouldn't have to be interpreted. Also, if the agreement was drafted properly, there should be a clause that spells out exactly how issues of interpretation will be handled. Bottom line, you need to consult with an attorney who can review the complete agreement in detail and advise you accordingly. Best of luck.
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