Am I entitled to my husband 401k after divorce and how soon will be able to collect? What will I need to access my share? 25 Answers as of June 25, 2013

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DO IT YOURSELF DIVORCE, pllc | Robert L. Willis, Jr
This question cannot be responded to with a "yes" or "no" response. Money accumulated in a 401K during the marriage is subject to division as a marital asset. It is in the galaxy of things the court can divide in a divorce but depending upon the parties situation, it may not be divided. An example is if the money in the 401K is equal to the money the spouse has in a 401k, the parties may set them off and not divide. If one person has received other property in excess of what is to be divided in the 401k, the court may not order a division. If the proceeds of a 401k are awarded, the party it is awarded to may receive it immediately. Most (not all) retirement plans will release the awarded proceed to an IRA in the receiving parties name.
Answer Applies to: Michigan
Replied: 1/2/2013
Law Office of Madaen | Bahram Madaen
Usually you are entitled to of everything that is occurred during marriage. However, 401k is hard to get and morst of the time the judges arrange another way for parties to divide it.
Answer Applies to: California
Replied: 1/2/2013
The Legal Center | Richard Manwaring
You may be entitled to one half of the community interest in his 401k. It should be divided as part of the property in the divorce. There may have to be a Qualified Domestic Relation Order (QDRO) done. This is an order signed by the court ordering the plan administrator to divide the account and what the terms of the division are. QDROs are not done by most attorneys so you will be referred to an attorney or firm that does them. The plan will be divided into two plans, one new one for you with your share and the old one for him with what is left. After the division you can do whatever you want with you're plan. However, there could be penalties and taxes if you cash it out early.
Answer Applies to: California
Replied: 12/30/2012
Law Offices of Arlene D. Kock
Law Offices of Arlene D. Kock | Arlene D. Kock
You need a court order allocating your share and ordering that the share roll over into a 401k opened in your name.
Answer Applies to: California
Replied: 12/30/2012
John Russo | John Russo
You are entitled to 50% of the marital portion of the plan, when you can take is determined my the plan itself, and you will need to have a QDRO prepared sent to the plan administrator, once it is approved by the administrator you need to have it entered as an order of the court, and then obtain a certified copy of same and forward it to the plan administrator.
Answer Applies to: Rhode Island
Replied: 12/27/2012
    Law Office of Kristine McDonnell | Kristine McDonnell
    It needs to state that you are entitled either in the divorce decree or separation agreement. Time will vary.
    Answer Applies to: Ohio
    Replied: 12/30/2012
    Law Office of Eric S. Lumberg | Eric S. Lumberg
    Your judgment of divorce will state how that asset will be divided. You will be able to collect according to the rules of the account. Talk to an attorney about this issue and discuss further.
    Answer Applies to: Michigan
    Replied: 12/30/2012
    Peyton and Associates | Barbara Peyton
    If your husband's 401k was acquired during marriage due to employment, you are entitled to one-half of it. The court will sign a document entitled qualified domestic relations order (QDRO) to divide the asset. the 401k holder will then divide the account and put half in your name. Be careful, though. Cashing out part of a 401k triggers a taxable event. Good luck
    Answer Applies to: California
    Replied: 12/30/2012
    Chaudhary Law Office, PLLC
    Chaudhary Law Office, PLLC | Satveer S. Chaudhary
    An attorney should draft a Qualified Domestic Relations Order (QDRO) to affect this transfer.
    Answer Applies to: Minnesota
    Replied: 12/30/2012
    Law Offices of Sherrie L. Davidson, LLC | Sherrie L. Davidson
    Usually any 401k earned during the marriage is community property and subject to division. It will depend on the specific plans rules as to when you can take it out or start withdrawing. You would also want to check with a CPA if you withdraw early as there can be severe tax consequences.
    Answer Applies to: California
    Replied: 12/27/2012
    John E. Kirchner, Attorney at Law
    John E. Kirchner, Attorney at Law | John Kirchner
    You will be entitled to make a claim to the portion of the 401k that is marital property. Marital property is basically anything that was acquired during the marriage. Whether you would get any share of the 401k will depend, in part, on the overall financial situation and there are no fixed, simple rules. There is no requirement that each separate item of marital property be divided so long as the overall distribution is "fair". Whatever you and your husband agree to is fair; but, if you cannot agree, a judge will make a decision based on the specific law of the state where you live.
    Answer Applies to: Colorado
    Replied: 12/27/2012
    Steven Kalishman, P.A.
    Steven Kalishman, P.A. | Steven J Kalishman
    Difficult to answer your question without a lot more information. You may contact us to set up a consultation.
    Answer Applies to: Florida
    Replied: 12/27/2012
    Glenn E. Tanner
    Glenn E. Tanner | Glenn E. Tanner
    In Washington, it depends what your dissolution of marriage decree says.
    Answer Applies to: Washington
    Replied: 6/25/2013
    Zales Law Office
    Zales Law Office | Nicholas C Zales
    What amount, if any, of his 401(k) is something the court decides during the divorce proceedings. If you have already been divorced and the judgment of divorce does not provide anything for the 401(k), they you need to speak to an attorney ASAP.
    Answer Applies to: Wisconsin
    Replied: 12/27/2012
    Robert J. Merlin, P.A.
    Robert J. Merlin, P.A. | Robert J. Merlin
    The contributions that were made to his 401(k), either by him or his employer, are marital and subject to being divided as part of equitable distribution. You should consult with an experienced family attorney in your community.
    Answer Applies to: Florida
    Replied: 12/28/2012
    Peters Law, PLLC
    Peters Law, PLLC | Mark T. Peters, Sr.
    In Idaho you are entitled to one-half of the value of the 401k for the period of time you were married. You will need to get a qualified domestic relations order (QDRO) entered by the court. You should also contact the 401k administrator to see if they have any special requirements. Generally, you will need to send a sealed copy of the QDRO to the administrator.
    Answer Applies to: Idaho
    Replied: 12/27/2012
    Peacock Law Group of the Lowcountry, LLC | Richard Peacock
    This all depends on where you are at in this divorce process, if there are any orders giving you rights to this, etc. There are several details not mentioned in your summary that an attorney would need to know prior to assisting you with this matter. No action and/or inaction should be taken based upon this information and it should not be applied to any situation(s) without first discussing it with a local attorney in person as soon as possible.
    Answer Applies to: South Carolina
    Replied: 12/27/2012
    Mary W Craig P.C. | Mary W Craig
    Whether you are entitled to a portion of his 401K depends on several things mostly whether or how long you were married while he was accumulating the 401K, how much you contributed to the joint account that paid into the 401K, and whether your lawyer can get a share of the 401K given to you in the divorce settlement. A judge must equitably divide a marital estate, but equitable does not mean equal. That means a judge can grant you something in exchange for leaving your husband's retirement intact and going only to him.
    Answer Applies to: Alabama
    Replied: 12/27/2012
    The Law office of Karla M Mansur
    The Law office of Karla M Mansur | Karla Mansur
    You may be entitled to a portion of your husband's 401k. You will most likely not have access to it until after a trial or separation agreement is submitted to the court. Remember if you take the money out before retirement age you will be penalized about 10% of the withdrawal and will owe it in taxes.
    Answer Applies to: Massachusetts
    Replied: 12/27/2012
    Musilli Brennan Associates PLLC
    Musilli Brennan Associates PLLC | John F Brennan
    It will depend on the divorce judgment.
    Answer Applies to: Michigan
    Replied: 6/25/2013
    LAW OFFICE OF ANNE B. HOWARD | Anne B. Howard
    You are entitled to half earned during marriage. You don't get it until you're retirement age unless you want to pay the taxes and penalties. You probably need a QDRO to divide it.
    Answer Applies to: California
    Replied: 12/27/2012
    Donaldson Stewart, PC
    Donaldson Stewart, PC | Monica H. Donaldson Stewart
    Generally speaking, each spouse is entitled to 1/2 of all assets that accumulated during the marriage (including 401k); however, the actual "rollover" of the funds does not take place until after the divorce is final.
    Answer Applies to: Arizona
    Replied: 12/27/2012
    The Davies Law Firm, P.A.
    The Davies Law Firm, P.A. | Robert F. Davies, Esq.
    No lawyer can answer this question without a lot more information. There are some general rules for dividing assets in a divorce, in the statute and in the court decisions on 'equitable distribution'. But you need to talk to a lawyer to get any useful advice.
    Answer Applies to: New Jersey
    Replied: 12/27/2012
    Elizabeth Jones, A Professional Corporation
    Elizabeth Jones, A Professional Corporation | Elizabeth Jones
    You are entitled to the share represented by the Time Rule of Brown which is from the date of marriage to the date of separation. It must be rolled over into a rollover IRA. Otherwise you will pay tax and penalty on it now.
    Answer Applies to: California
    Replied: 12/27/2012
    R. Jason de Groot, P.A
    R. Jason de Groot, P.A | R. Jason de Groot
    First you need an agreement or a court order, second you will need a QUADRO. Get an attorney.
    Answer Applies to: Florida
    Replied: 12/27/2012
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