If my wife and I get a divorce, is she entitled to my IRA?

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If my wife and I get a divorce, is she entitled to my IRA?

If so, can I take it and spend it before the divorce? It’s in only my name at the bank. She has no access to it. Should I speak with a divorce attorney about this? I’m in San Diego County, CA. 

Asked on August 8, 2010 under Family Law, California

Answers:

M.T.G., Member, New York Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

DO NOT do anything to that IRA until it has been determined to be a separate or marital asset in your divorce.  If you do spend it and it is determined to be a marital asset you will be looked at as "dissipating" assets and Judge's don't look too kindly on that.  The general rule is if the funds were placed in to the Individual Retirement Account during the marriage and before the separation, then it is marital property to be divided 50/50 under California law.  It really does not matter that it is in your name only.  Yes, I think that you should speak with an attorney in your area.  Good luck.


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