Am I entitled to my husbands 401K in the event of a divorce? 36 Answers as of June 24, 2011

My husband is filing for divorce and I was wondering if I am entitled to any of his 401k since he didn't accrue any until we were married. He has stated that he is not touching his 401k in this divorce, just wondering if this is being fair.

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Michael Anthony Wing, P.C.
Michael Anthony Wing, P.C. | Michael Anthony Wing
In AL, the retirement is accessible by a QDRO, Qualified Domestic Relations Order, if your have been married for ten years or more. Stay well.
Answer Applies to: Alabama
Replied: 6/24/2011
Warner Center Law Offices of Donald F. Conviser
Warner Center Law Offices of Donald F. Conviser | Donald F. Conviser
You are entitled to 50% of the community interest in your husband's 401K. You will need a QDRO to access your share, as well as a Judgment awarding your 50% of the community interest to you. You would best be represented in your divorce by an experienced Family Law Attorney.
Answer Applies to: California
Replied: 6/21/2011
The Reed Law Firm, P.L.L.C.
The Reed Law Firm, P.L.L.C. | Vanessa Reed
Yes, you are entitled to one-half of the marital share of the retirement account, that being the portion of the said account accrued from the date of marriage, to the date of separation, plus or minus any passive gains or losses on said share, until the date of distribution.
Answer Applies to: Virginia
Replied: 6/16/2011
Reeves Law Firm, P.C.
Reeves Law Firm, P.C. | Roy L. Reeves
The 401K is subject to division and you would be well advised to hire a lawyer to ensure this fact. I have lots more information on divorce, the division of property, etc. on my website. If this case is pending in Collin or Dallas Counties, and you do not have a lawyer, let me know, I would be happy to discuss the facts with you and earn your business.
Answer Applies to: Texas
Replied: 6/16/2011
Goolsby Law Office
Goolsby Law Office | Richard Goolsby
I would recommend you retain a divorce lawyer who will advise you as to your rights to claim an equitable division as to all marital assets (and debt). Good luck!
Answer Applies to: Georgia
Replied: 6/16/2011
    Glenn E. Tanner
    Glenn E. Tanner | Glenn E. Tanner
    You are entitled to a fair and equitable division of all assets and debts. If the 401k was in full or partially accumulated during the marriage, it is probably community property. Depending on what's fair and equitable, you can get some or all of the 401k regardless of who's name it is in. See an attorney. Good luck.
    Answer Applies to: Washington
    Replied: 6/15/2011
    Shana E. Thompson Law
    Shana E. Thompson Law | Shana Thompson
    In Washington State the 401k you are describing would be community property and subject to equitable (whatever is fair) division by the court.
    Answer Applies to: Washington
    Replied: 6/15/2011
    Fredric H. Aaron, Attorney at Law, P.C.
    Fredric H. Aaron, Attorney at Law, P.C. | Fredric Harlan Aaron
    Any amounts in a 401K which accrued during the time of the marriage will be considered marital property subject to equitable distribution. If your husband does not want to transfer any funds from his 401K to your 401K/IRA or similar retirement account, then the portion which you would be entitled to will be paid out of other assets. If he agrees to distribute a portion to you, then you will need a QDRO (Qualified Domestic Relations Order) signed by a judge and sent to the plan administrator. This will ensure that the distribution to your retirement account is made without any tax consequences.
    Answer Applies to: New York
    Replied: 6/15/2011
    Fox Law Firm LLC
    Fox Law Firm LLC | Tina Fox
    If the 401k was incurred after the marriage then yes, you are entitled to a portion of it. How much depends on different factors. Contact the office today to discuss your case.
    Answer Applies to: Illinois
    Replied: 6/15/2011
    Joanna Mitchell & Associates, P.A.
    Joanna Mitchell & Associates, P.A. | Joanna Mitchell
    If it was all acquired during the divorce, you are, in most instances, entitled to half. He doesn't have a choice about that, unless he wants to give you more of some other offsetting asset. My office offers free initial telephone consultations if you would like to discuss this matter in more detail, as well as explore the potential rights and options available. If you would like to coordinate a free initial telephone consultation, please contact my office.
    Answer Applies to: Florida
    Replied: 6/15/2011
    Vincent J. Bernabei LLC
    Vincent J. Bernabei LLC | Vincent J. Bernabei
    To the extent the 401(k) was acquired during the marriage, it will be divided equally when you divorce. Be careful though, because you do not want to incur taxes and penalties for an early withdrawal, so the transfer of your share to you should be done through a Qualified Domestic Relations Order (QDRO).
    Answer Applies to: Oregon
    Replied: 6/15/2011
    John E. Kirchner, Attorney at Law
    John E. Kirchner, Attorney at Law | John Kirchner
    Funds in a 401k are no different than any other property. If they are acquired during the marriage they are considered marital property and all marital property is subject to a fair division between the parties. Whether you would receive all or any portion of the husband's 401k might depend on what other assets and debts there are to be divided. There are no simple rules and each case has to be evaluated on its own set of facts.
    Answer Applies to: Colorado
    Replied: 6/14/2011
    Cody and Gonillo, LLP
    Cody and Gonillo, LLP | Christine Gonilla
    You certainly have an equitable claim; retirement assets are part of the marital estate,
    Answer Applies to: Connecticut
    Replied: 6/14/2011
    Law Office of Michael W. Bugni
    Law Office of Michael W. Bugni | Jay W. Neff
    You may be entitled to some of the 401K money. What the court does in a divorce is to look at all of the property and all of the debts, and then divide all of the property and debts up in a way that the court thinks is "fair and equitable." In reaching what the court thinks is fair and equitable, it looks at a number of issues. So, depending on the facts and circumstances of your case and depending on how the other property gets divided you may be entitled to some of the 401K money.
    Answer Applies to: Washington
    Replied: 6/14/2011
    Meriwether & Tharp LLC
    Meriwether & Tharp LLC | Patrick Meriwether
    In Georgia, a 401k that had contributions made to it during the term of the marriage is subject to equitable division. This does not guarantee that you will receive half or a portion of the 401k, but the 401k is definitely up for division. It can be divided by what is called a QDRO, or Qualified Domestic Relations Order, without tax consequences if the funds are placed in a separate IRA.
    Answer Applies to: Georgia
    Replied: 6/14/2011
    Seattle Divorce Services
    Seattle Divorce Services | Michael V. Fancher
    Under Washington law, retirement assets acquired during the marriage are community property and subject to division by the court. If your husband does not want to tough the 401K, then he needs to offer you something else of comparable value.
    Answer Applies to: Washington
    Replied: 6/14/2011
    Vermeulen Law office P.A.
    Vermeulen Law office P.A. | Jacob T. Erickson
    Any property that is acquired during the divorce is marital property. The Court can award you an equitable portion of the 401(k) as a part of the divorce.
    Answer Applies to: Minnesota
    Replied: 6/14/2011
    Law Office of Robert L. Fiedler
    Law Office of Robert L. Fiedler | Robert L Fiedler
    If it was accrued only during the marriage, it very well might be considered a marital asset to be divided. How the assets get divided ultimately may leave his 401k intact or may result in his having to give you part of it through a QDRO. You should consult with an attorney to find out more of the probabilities.
    Answer Applies to: Connecticut
    Replied: 6/14/2011
    The English Law Firm
    The English Law Firm | Robert English
    If the 401K is accrued during marriage in a community property state such as California, then you would have a claim to it or equivalent value property that could take the form of an equalization payment.
    Answer Applies to: California
    Replied: 6/14/2011
    Michael Apicella
    Michael Apicella | Apicella Law and Mediation
    From the limited facts in your question, it sounds like at least part of the value of the 401K is community property. If so, then you are entitled to half the "community" portion of that asset. You should seek the assistance of a local family law lawyer. If not, you could lose more (in terms of the value of assets that you're entitled to) than what it would cost for legal assistance. Good luck!
    Answer Applies to: California
    Replied: 6/14/2011
    Wolverine Law | Stuart Collis
    Retirement funds are subject to division in most divorce cases.
    Answer Applies to: Michigan
    Replied: 6/14/2011
    Law Office of L. Paul Zahn
    Law Office of L. Paul Zahn | Paul Zahn
    It sounds like, based upon what you are saying, that the 401(k) is entirely community property, so you would be entitled to half. If you are in my area and are looking for an attorney, please contact me for a free consultation.
    Answer Applies to: California
    Replied: 6/14/2011
    Law Office of James Lentz
    Law Office of James Lentz | James Lentz
    He just thinks he isn't touching his 401(k). In Ohio , Michigan and most states, 401(k) assets accrued during the marriage are an asset to be divided with all other marital assets. We do this with a document called a Qualified Domestic Relations Order (QDRO). Please seek counsel soon so that you can file first and get a restraining order in place to prevent him from touching his 401(k) before the court can equitably divide it.
    Answer Applies to: Ohio
    Replied: 6/14/2011
    Willick Law Group
    Willick Law Group | Marshal S. Willick
    The law of all 50 States provides for division of retirement benefits accrued during marriage as the property of both spouses - in other words, half of that money is presumptively yours. Lots of information on that point is posted on the websites in my address block below.
    Answer Applies to: Nevada
    Replied: 6/14/2011
    Beresford Booth PLLC
    Beresford Booth PLLC | S. Scott Burkhalter
    The Court will divide the net assets and liabilities of your estate fairly and equitably.
    Answer Applies to: Washington
    Replied: 6/14/2011
    Palomino Law Firm, P.C.
    Palomino Law Firm, P.C. | Debra Palomino
    You have a community interest in the amount accrues during marriage. So, no he is not being reasonable.
    Answer Applies to: Arizona
    Replied: 6/14/2011
    Law Office Of Jody A. Miller
    Law Office Of Jody A. Miller | Jody A. Miller
    There are no "entitlements" to division of property. However, you can ask for an equitable division of property, which is a division of marital property that a judge considers fair and equitable under the circumstances ( if you can't decide yourselves how to divide the property). If the retirement fund was completely built before the marriage and there were no contributions to during the marriage, the fund would be separate property and not subject to equitable division ( which is only a division of marital property - or property acquired during the marriage). If the fund was built entirely after the marriage, it would be entirely marital property and the whole fund subject to equitable division. If the funds was started before the marriage, but also was contributed to during the marriage, you would need to work with an attorney to determine how much is marital property and how much is separate property.
    Answer Applies to: Georgia
    Replied: 6/14/2011
    Ashman Law Office
    Ashman Law Office | Glen Edward Ashman
    Get a lawyer ASAP. The increase in value of a 401K during a marriage is marital property subject to division in a divorce.
    Answer Applies to: Georgia
    Replied: 6/14/2011
    Bartholomew & Wasznicky LLP
    Bartholomew & Wasznicky LLP | Hal D. Bartholomew
    Under California community property the 401k is a community property asset. According to your question all the contributions were made during the marriage. If this was the only asset from the marriage, the law would divide it equally between the two of you. Your share, pursuant to a Qualified Domestic Relations Order (QDRO) would be able to transferred directly to an IRA of your choice without being taxed . It would be taxed to you later when you commenced withdrawals.
    Answer Applies to: California
    Replied: 6/14/2011
    Edwin Fahlen Attorney at Law
    Edwin Fahlen Attorney at Law | Edwin Fahlen
    Your husband may not be "touching" his IRA but you certainly may, in fact you can not only touch it, you will receive one-half of what was contributed during the marriage, along with any profits thereon. At least that is what you will receive through this office. You each are entitled to one-half of everything accumulated during the marriage, whether it is an asset or an obligation. Even items that may be in only one persons name is still community property if it was acquired during the marriage, absent any documentation to the contrary, and it was not a gift, or inheritance.
    Answer Applies to: California
    Replied: 6/14/2011
    Komanapalli Massey LLP
    Komanapalli Massey LLP | Mark A. Massey, Esq.
    You should give us a call, we will get you at least half of that 401k, and depending upon the role you played during the marriage relative to his role, maybe more. All income earned during the marriage by either spouse belongs to the community (in a community property state such as California at least). That means that half all income earned by one spouse during the marriage belongs to the other spouse. That includes income diverted into pensions, 401k savings plans - including half of all matching contributions made by the employer to his 401k, and any other income earned by the efforts of the working spouse. That is because all efforts of each spouse also belong to the community. There is a lot of history behind the rules,policies and laws, but it all boils down to most of what he has attained during the marriage is half yours.
    Answer Applies to: California
    Replied: 6/14/2011
    Vermeulen Law office P.A.
    Vermeulen Law office P.A. | Cynthia J.Vermeulen
    Under Minnesota law, all assets and debts acquired during marriage are subject to equal division. You should contact an experienced attorney in your area for legal advice and representation.
    Answer Applies to: Minnesota
    Replied: 6/14/2011
    Law Office of Richard B. Kell
    Law Office of Richard B. Kell | Richard B. Kell
    Whether his 401k gets "touched" pursuant to the divorce is not up to him. It will be considered a marital asset subject to equitable division by the court. For more information on this topic, you can visit my website's "Blog" page (second-to-last article). I hope that you find it helpful.
    Answer Applies to: Massachusetts
    Replied: 6/14/2011
    Gregory T. Buckley, Attorney at Law
    Gregory T. Buckley, Attorney at Law | Gregory T. Buckley
    Any value of the 401(K) that accrued during the marriage is a marital asset and subject to equitable distribution. If you have any retirement accounts, it is often easier for each party to keep their own and attempt to equalize any differences in values through other means.
    Answer Applies to: Florida
    Replied: 6/14/2011
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