Legal Question in Family Law in California

Re: 401k from before marriage

Only property that is aquired during marriage or that is transmutated to community property by the act of a Spouse during marriage is community property. I would ask your spouse to sign a contract transmutating your share of the 401k into community property, then having your spouse put the 401k in both of your names.

Re: 401k from before marriage

If the name on the account has never been placed in joint names it will most probably remain separate property. I recently had a case in which the husband had a retirement account which he managed and saw an increase of 900% over a three year marriage. The wife claimed that the increase was due to husband's management and effort and therefore was at least in part community property. We never got to trial, because we settled the whole case prior to trial. It is my opinion that the wife did not have a good claim, however, there is no good case law on the issue. If community efforts were minor, not involving a great deal of time and the increase reflects the market in general I would suggest that it is highly unlikely that it would be found to be community property. It depends on the facts but it would take very unusual facts to turn the funds into community property unless wife's name is placed on the account, in which case it is a whole different story. Good Luck, Pat McCrary