Raleigh, NC asked in Civil Litigation, Divorce and Family Law for California

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?

1 Lawyer Answer
Andy Chen
Andy Chen
  • Modesto, CA
  • Licensed in California

A: I would be very surprised if the clause you quoted referred to something besides accounts and contributions made during the marriage. In California, accounts and contributions made prior to the marriage are separate property and the other spouse wouldn't be making a claim for separate property anyway. Thus, your clause would be superfluous if it referred to pre-marriage accounts and contributions. In California, contributions made during the marriage are community property by default (i.e. it would be split in a divorce), but it is very common to change this in a prenup. A clause like the one you quoted would be one way of doing that. As a result of a clause like yours, the spouses would have no claim to each other's retirement plans.

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