What Division of Assets Has To Do With Your Retirement Accounts

Divorces are often fraught with heightened emotions, especially when it comes to the division of assets that were obtained during a marriage. Couples with significant assets often find themselves in disagreement about who is entitled to what, and that often results in a contested divorce in which a judge must weigh evidence and testimony to arrive at a decision.

division of assets

The guiding principle when dividing assets in a divorce is to make that division equitable, which does not necessarily mean that each side gets half. The term ‘equitable’ refers to a division that a judge deems to be fair and just, and there are many factors that weigh into a judge’s decision about what is fair and just, including the contribution each spouse made to the assets, how long the marriage lasted, and the income of each spouse during the marriage.

But in community property states, the court must divide the assets equally, which means a real 50/50 split, regardless of the contribution each spouse made to acquisition of assets. However, there are only nine states that operate under the community property clause: Arizona, California, Idaho, Louisiana, New Mexico, Nevada, Texas, Washington, and Wisconsin.

When it comes to the division of retirement accounts, there are some retirement plans that are considered marital property, and other accounts that are not included as marital property. Let’s take a look at how retirement accounts are handled in a divorce.

Retirement Accounts That May Be Subject to Division of Assets

In general, most retirement accounts will be included under the category of marital property, and will thus be subject to a division of assets ruling by a judge. The accounts under this designation, include:

  • 401K Plans – this is an employer-sponsored retirement savings plan that lets workers designate a specific portion of their paycheck to a retirement account. Many employers match an employee’s contribution up to a certain limit, and taxes are not paid until money is withdrawn from the account.
  • Individual Retirement Account (IRA) – unlike a 401K, an IRA is not sponsored by an employer, but is a private savings retirement account that you can open with a number of different financial institutions. The IRA offers tax-deferred advantages, and tax-free growth, and there are two main types: Roth IRA and Traditional IRA.
  • Profit Sharing Plans – this is an employer-sponsored plan that allows employees to share in company profits based on quarterly or annual earnings. Because employees don’t contribute to this type of plan, the amount of money in the plan varies based on the company’s performance. But this plan incentivizes employees to help the company reach profit goals so that they can share in the earnings.

Retirement Accounts That Cannot Be Included As Marital Property

There are also some types of retirement accounts that cannot be included as marital property, and therefore are not subject to division of assets during a divorce.

These retirement plans include:

  • Military Injury Benefits
  • Railroad Workers’ Retirement Accounts
  • Social Security Accounts
  • Workers’ Compensation Benefits

These retirement plans/benefits are distributed under the supervision of federal law, which supersedes state law and prohibits them from being considered distributable marital property.

How Distributable Marital Property Is Divided In a Divorce

In a community property state, all retirement accounts that are considered marital property are equally divided between both parties. In equitable distribution states, such as Florida, a judge determines the division of retirement accounts based on factors unique to each case.

But in both circumstances, the court can divide retirement accounts by two methods: deferred distribution or immediate offset.

With deferred distribution, the division of the retirement account is deferred until the benefits are payable to the owner of the account. This often results in a higher payout to each party, but the disadvantage is that it could take decades before any money is paid out.

With the immediate offset option, the court will distribute the retirement account benefits immediately by calculating the present value of the retirement account.

It’s important to remember, however, that to prevent your soon-to-be-former spouse from draining the retirement account, you must petition the court to issue a Qualified Domestic Relations Order (QDRO). This is a court order that prevents a party in a divorce from accessing a retirement account and requesting payouts for the sole purpose of denying those funds to the other person in the divorce.

An experienced family law attorney must file this order with the administrator of the retirement plan, and the plan administrator must approve the QDRO and send that approval to the court before it is considered an official order of the court.

Remember, however, that a QDRO would only cover retirement accounts that are considered marital property. Therefore, it would not apply to government pensions such as social security, and certain types of military pensions.

Hiring a Lawyer To Help You In a Divorce

Division of assets in a divorce can be a complicated and often contentious process that can take months and sometimes years to resolve. This is especially true if you don’t live in one of the nine states where assets are divided 50/50 because without presenting strong evidence to a judge in an equitable distribution state, such as Florida, you may find yourself on the short end of things when the final decision is made regarding your assets, including retirement income you need for the future.

The Law Office of Eric C. Cheshire has more than 25 years of experience handling all aspects of a divorce, and equitable distribution, and we have the resources to help you get the assets you deserve. Please call us today at 561-655-8844 to discuss your case in more detail.

Additional Reading

7 Things You Should Not Do During a Divorce in Florida

High Asset Divorce In Florida: Steps To Take and Mistakes To Avoid

What is My Parental Responsibility after a Florida Divorce?

When children are involved in a divorce, the process of navigating through child custody issues can be stressful and emotional for all parties involved.  However, because a divorce can be particularly difficult for a child, parents should make sure that their child’s care and well-being is a priority.  Parental responsibility or duties that parents should assume, ensures that the transition after divorce goes as smoothly as possible for their children. Remember that just because your relationship with your spouse is ending, it does not mean that you are no longer a caring and trustworthy parent.  That’s why it’s important for parents to conduct themselves and their activities in a manner that foremost supports the best interests of their children.

Here are 6 ways to show parental responsibility in your child’s life:

  1. Shared Parental Responsibility.  In Florida, parents are encouraged to share the rights and responsibilities, as well as the joys, of raising their children.  In fact, under Florida law, parents should share responsibility as long as it is not detrimental to their children.
  2. Parenting Plans.  In most instances, parents must come up with a parenting plan that addresses the details of raising their children including who is responsible for making major decisions or for the daily tasks associated with the upbringing of their children.  Parenting plans also typically include designations indicating who is in charge of all health care and school related matters, visitation schedules, and methods that are to be used for communicating with the children.
  3. Frequent and Continuing Contact.  After parents separate or are divorced in Florida, in most cases, both parents should have regular and continuing contact with their children.  Each parent must ensure that their children have free and unhampered access to the other parent.
  4. Promote Positive Relationships.  Under Florida law, parents have an obligation to promote positive relationships between their children and the other parent.  This means that parents should not disparage each other or discuss the divorce in the presence of their children, and they should not do anything that would estrange their children from the other parent.
  5. Pay Child Support.  Depending on the custody arrangement, one parent may owe child support to the other parent.  Child support is generally used to cover the housing, food, and clothing of the children so when a payment is not timely, the children do not receive the support they need and deserve.
  6. Seek Counseling or other Help.  Before a divorce is final, parents are ordered to attend a parenting class on the consequences of a divorce where families with children are involved.  In addition to this class, parents may have also consulted other professionals such as family therapists or counselors.  If one or both parents continue to have issues with co-parenting, or if any of the children involved appear to have a difficult time transitioning, it may be in the best interests of everyone to seek further counseling or even the advice of an experienced West Palm Beach Family Law Attorney.

Contact a Dedicated and Knowledgeable West Palm Beach Family Law Attorney Today

If you are filing for divorce and children are involved, it is imperative that you take proper steps to ensure that the best interests of your children are protected.   If you have any questions about divorce, child custody, or parental responsibility, both during and post-divorce, be sure to contact an experienced West Palm Beach Family Law Attorney as soon as possible.  At Eric C. Cheshire, P.A., we focus exclusively on divorce and family law, and we have extensive experience dealing with divorces that involve child custody issues.  Call us today at (561) 655-8844 to schedule your personal consultation with attorney Eric C. Cheshire, and find out what he can do for you.


Do I Need To Take A Divorce Parenting Class In Florida?

Under Florida law, parents who are involved in divorce proceedings are required to take a divorce parenting class.  The class is required because parental conflicts arise so often during divorce and it can be a real issue, particularly when young children are involved.  The divorce parenting class helps to minimize conflict and provides guidance to parents on how to ease any negative effects that the divorce may have on their children.  You don’t have to worry about attending the class with your soon to be ex-spouse.  You can both attend separate classes in your own time and at your own convenience.  You may also sign-up for an on-line class, to take at your convenience.

When signing up for the parenting class, you will want to make sure you take the class that has been approved by your local jurisdiction and by the Court.  So if you’re in West Palm Beach or in Palm Beach County, be sure to sign up for an approved divorce parenting class that is offered in this jurisdiction.  Whether you take an online class or in person will depend on your discretion.  A simple Internet search for Palm Beach County divorce parenting classes can give you a list of providers.

What Might I Expect When Taking The Parenting Class?

Parenting classes must be at least four hours in duration, but they can be longer.  As mentioned above, the class can either be online or in-person.  You will also likely be charged a reasonable fee for the class.  The class will typically provide information regarding the following:

  • The legal process for resolving custody disputes, and any issues that might arise;
  • The stages of divorce, and any emotions or problems that parents may face;
  • The needs of and any concerns about children whose parents are going through a divorce;
  • Information on any resources or community services that are available to help parents through the divorce process;
  • Information on family dynamics and relationships during a divorce;
  • Information on financial obligations or responsibilities such as child support;
  • Information about spousal or child abuse and neglect.

After you complete a court ordered parenting class, you will receive a certificate that will be filed with the Court so that the judge knows that you’ve complied with the class requirement.  If you do not complete the course, the Court will not finalize your divorce, and in some instances, could hold you in contempt.  What this means is that you can go to jail if you do not comply with a court ordered parenting class requirement, as this is a direct order from the Court.  So there really is no way to avoid the parenting class if children are involved and if you want your divorce finalized.

As soon as you file for divorce, it is best that you try to take the parenting course sooner rather than later so that you don’t have to worry about taking it as your divorce nears finalization.  It also is a good way to let the Court know that you are serious, responsible, and doing what’s required of you.


Contact a Dedicated and Knowledgeable West Palm Beach Family Law Attorney Today

If you’re looking to file for divorce, or have been served with a divorce petition and children are involved, you will be required to participate in a parenting class before your divorce is finalized.  If you have any questions about the parenting class, need help finding a class, or just have questions about the divorce process in general, be sure to consult with an experienced Family Law Attorney right away. Eric C. Cheshire, P.A. focuses primarily on divorce and family law. Call us today at (561) 655-8844 to schedule your case evaluation.



How to Talk to Children About Divorce

Talk to Your Children about DivorceYou and your spouse have made the decision to end your marriage. How do you talk to children about divorce? With so many fears about the effects of divorce on children, the thought of discussing a divorce in your family can be stressful, but talking with your children about this tender subject is an opportunity. It’s a chance to set the tone for the future… if done correctly.

Be Focused on Your Kids

There is only one thing to remember when its time to talk to children about divorce.  Initiating a discussion with your children about an upcoming divorce isn’t about the adults who are divorcing. It’s about your children experiencing the divorce that they didn’t ask for. Your focus should be on their needs. If possible, sit down together in a place where the children feel safe. Choose a time when they don’t have to be anywhere so that they have time to process the news before facing the world.

Be Positive

Regardless of your feelings about the divorce, be positive. It’s okay to admit that you are sad or anxious, but do not say negative things about your spouse. Children love both their parents and they shouldn’t feel as though they have to take sides. Ideally, you should explain that both parents will continue to offer love and support. Be sure to make it very clear that the children are not to blame for your decision to divorce.

Be Age-Appropriate

Younger children process things differently than older children, so keep the discussion at an age-appropriate level. When it’s time to talk to children about divorce, provide them with the information they need to feel secure without overwhelming them with facts that they don’t want or need.  Children of all ages will need additional time to process the effects of divorce on their lives.  Give them a little time and space to process the divorce.

Be Concrete

The combination of divorce and children makes many people uncomfortable, so there is a tendency to fall back on platitudes. Children of divorcing parents are dealing with a lot of uncertainty. They need facts about how their lives will be affected. Instead of making generic promises, reassure them that you are thinking about their needs. Will they still live in the same house and attend the same school? Which parent will they stay with? How often will they get to see the other parent? Who will help them with their homework or attend their soccer games? It’s okay to admit that you don’t have everything figured out yet, but provide concrete answers when it is possible and appropriate.

Be Available

When it comes to kids and divorce, be clear that you are still their parents and that you will be there for them. Help them understand that their family is changing, but it is still their family. Remember that how divorce affects children varies. They may pepper you with questions, respond with anger or seem to shrug the news off. Be available when they need to talk, but don’t pressure your child to react in a certain way. Give them time and space to comprehend what is happening on their own terms.

Divorce is a major change, and change is often unsettling and scary for people of all ages. We hope these tips are helpful to talk to children about divorce.  At Cheshire Family Law, we understand how stressful divorce can be, so we always treat our clients with sensitivity and compassion. If you have a family law question, call us today at 561-655-8844 to schedule a consultation.












Time Sharing Modification to Change Parenting Plan for Child Custody

Time sharing modification

Life never stands still, so change is inevitable. Usually time sharing is established when a couple first gets divorced, but sometimes time sharing modification is necessary.

When it comes to matters of parenting plans and child custody, making adjustments can be tricky, and it is essential to have any alterations documented properly. How do you accomplish this?

Review the existing custody order.

Before you can determine how to change your parenting plan, it makes sense to spend a little time reviewing the existing time sharing court order. Read through it carefully. Think about what is working for your family, what is not and why. Identify alternative options.

Decide what changes you would like to see.

When seeking solutions, consider the possibilities and decide what changes you would like to pursue. Assemble a list of reasons why you would like to see these changes.

  • Has either parent had a change in financial circumstances?
  • Does one parent want or need to relocate?
  • Is your child having an educational or emotional issue that deserves to be addressed?
  • Is the other parent not abiding by the existing plan or acting in an abusive manner?

Remember that the guiding factor that courts use to determine whether a time sharing modification or some other change to the parenting plan is warranted is whether it is in the best interests of the child.

Talk with the other parent.

While it is possible to modify a parenting plan over the objections of the other parent, it is easiest to do so if all interested parties agree to the change. If circumstances allow it, discuss your desire to modify the time sharing plan with the other parent and try to reach a suitable agreement. The courts appreciate it when parents make a real effort to work together to handle the inescapable challenges of parenting, and they will generally look favorably on requests for parenting plan changes that both parties have agreed to. However, if your relationship is stormy or acrimonious, it may be necessary to skip this step and go straight to your lawyer for assistance in seeking any modifications.

Seek legal assistance.

If for any reason both parties cannot come to a reasonable agreement, you will need to get the courts involved. A child custody hearing will be held to present your request and explain why the changes are in the child’s best interest. Your family lawyer can provide guidance in how to best make your case. The other parent will have a chance to respond, and the court will decide whether to alter the time sharing plan.

Even if both parents agree to change parenting plan, you will want to speak with your lawyer and have a document that outlines the new plan drawn up and approved by the courts. This prevents confusion and limits the likelihood that the other parent might go to court later and claim that you are interfering with their parental rights by not respecting the parenting plan.

At Cheshire Family Law, we’ve been helping Florida families find the solutions they need since 1988. For assistance with time sharing modifications and other child custody issues, contact us today at (561) 655-8844.


Steps to Protecting Children Emotionally During a Divorce

The decision to divorce may cause a great deal of emotional pain for both the husband and the wife even if it’s the best choice for both parties.

Children and Divorce

It can be an ordeal for everyone involved, and it’s important that parents do everything possible when protecting children emotionally from the impact of divorce on children.

The effects of divorce on children may include long-term emotional damage if steps aren’t taken to protect the well-being of the child through this difficult time. Fortunately, there are several steps you can take when protecting children emotionally and get through the divorce while remaining emotionally sound.

Prepare Them With Knowledge:

It’s important that both parents sit down together to explain the impending divorce to their children. Use age-appropriate words to make sure your children understand that they are in no way at fault for the divorce, they will still have access to both parents and everyone is going to work together to strive for a happier future. Books are available to help your children understand, and you should not hesitate to seek help from your church or a therapist familiar with issues regarding divorce and children.

Never Ask a Child to Choose:

One of the biggest ways in protecting children emotionally  is to never ask a child which parent they want to live with.  Especially with younger children.  Unless you have older teenage children, you should never ask your child which parent they want to live with. It’s up to you and your spouse to determine which parent should have primary custody of the child. As your children get older, it’s okay to ask their input.

Keep a Civil Tongue:

If you and your spouse are experiencing an ugly divorce, you must never say a bad word about your spouse in front of your child. You must remember that your spouse is your child’s other parent, and it will make the child feel bad about himself and insecure if you paint the other parent in a bad light.  Read more about Parent Alienation Syndrome

Make Visits Nice:

During the separation before the divorce, your children will have the opportunity to see what visiting their other parent is like. Don’t give in to the urge to spoil your child during these visits, but make things as normal and secure as possible. Each parent needs to make sure their child has a room that contains comfort items, and it’s more important than ever to spend one-on-one time with your child during these visits.

Don’t Involve Children in Problems:

Children should never be involved by the problems that occur during a divorce. For example, never send a message with your child to tell his father that he is late on child support, and don’t let your child know that you can’t afford something because of the divorce settlement.

Let Your Love Lead You

Parents who allow their love for their children to be the most important issue when preparing for a divorce will be able to make decisions that are good for everyone. Follow these few tips, and you are sure to raise happy and healthy children who aren’t adversely affected by your divorce.

The goal is to divorce your spouse, but not damage the relationship that your children can have with both parents. It is possible and we’ve seen it happen. But it will take work. If your spouse is not following these steps, there isn’t much you can do. We encourage you to not fall into the trap to mudslinging. After all, that’s childish.

Attorney Cheshire has dedicated his work to helping couples reach a divorce settlement while maintaining their sanity. If you’d like to have a referral for a therapist to talk to during this time for you and your children, please call us at 561-655-8844.