Q: Can I take out a loan on my retirement account (before we file) without being in contempt of Divorce court?

A: Based on the information provided, here are a few key considerations regarding taking out a loan from your retirement account before filing for divorce in California:

1. Automatic Temporary Restraining Orders (ATROs): In California, once a divorce petition is filed and the other party is served, ATROs go into effect automatically. These orders prohibit either spouse from making significant financial changes, including borrowing against or withdrawing funds from retirement accounts, without the other spouse's written consent or a court order. However, if you take the loan before filing for divorce and serving your spouse, you would not be violating the ATROs.

2. Community Property: California is a community property state, meaning that assets acquired during the marriage are generally considered jointly owned by both spouses. Retirement accounts earned during the marriage are usually considered community property and subject to division in a divorce. Taking out a loan against the account could impact the division of assets.

3. Fiduciary Duty: Spouses owe each other a fiduciary duty, which means they must act in good faith regarding the management and control of community assets. If the loan is taken out with the intent to deprive the other spouse of their share of the asset, it could be viewed as a breach of fiduciary duty.

4. Tax Implications: Depending on the type of retirement account and your age, there may be tax consequences and early withdrawal penalties for taking out a loan.

In summary, while taking out a loan from your retirement account before filing for divorce may not be a direct violation of court orders, it is essential to consider the potential legal and financial implications. It is advisable to consult with a qualified family law attorney and a financial advisor to discuss your specific situation and options before proceeding.