Am I entitled to my spouse's 401K plan if we divorce? 49 Answers as of July 03, 2013

Should I be entitled to half of my wife's 401k plan, when we get divorced? Any information would be appreciated. Thank you.

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Horizons Law Group, LLC
Horizons Law Group, LLC | Michelle B. Fitzgerald
Property division in wisconsin is 50/50 with some exceptions that can be considered by the court.
Answer Applies to: Wisconsin
Replied: 12/15/2011
Law Office of Lenore Tsakanikas, PLLC
Law Office of Lenore Tsakanikas, PLLC | Lenore Tsakanikas
In Arizona, 401 K plans acquired or contributed to during the marriage would generally be considered community property and you would be entitled to half of the community interest.
Answer Applies to: Arizona
Replied: 12/13/2011
Law Office of William L Spern | William Spern
Any assets acquired during the marriage including a 401k is subject to marital splitting. A QDRO will be entered disposing of such assets.
Answer Applies to: Michigan
Replied: 12/12/2011
Reeves Law Firm, P.C.
Reeves Law Firm, P.C. | Roy L. Reeves
As a rule, any money earned during the marriage, even if stashed away in a 401K or other retirement vehicle, is divisible at divorce. The question is how much was put in during the marriage? If her 401K had $10,000 in it before you married and today it is worth $15,000 then it is assumed $5,000 is community and the court can award you a share of that $5,000 (the $10,000 in prior to marriage is all hers). The same applies to earned retirement - if you are a government employee for example, and you had 10 years towards retirement before marriage, but have 15 years towards retirement now, she can ask for a percentage of your retirement based on the 5 years of overlapping service and marriage.
Answer Applies to: Texas
Replied: 12/12/2011
The Law Office of Cathy R. Cook
The Law Office of Cathy R. Cook | Cathy R. Cook
Yes, you are entitled to one-half of the portion of the plan that was accumulated during the marriage.
Answer Applies to: Ohio
Replied: 12/12/2011
    Michael Rose Attorney at Law
    Michael Rose Attorney at Law | Michael Rose
    Did she start the 401K when you were married? or did she already open it before marriage? If so, you only get a percentage (not 50). There are a number of documents that go with a pension.
    Answer Applies to: California
    Replied: 7/3/2013
    Joanna Mitchell & Associates, P.A.
    Joanna Mitchell & Associates, P.A. | Joanna Mitchell
    Any portion of the 401k that was accrued during the marriage is potentially a marital asset subject to equitable distribution, which typically means 50/50 of the marital portion.
    Answer Applies to: Florida
    Replied: 12/9/2011
    Law Office of Michael E. Hendrickson
    Law Office of Michael E. Hendrickson | Michael E. Hendrickson
    Yes, you may have a marital claim to your wife's 401K plan but many factors may enter into the calculations as to how large it might be and that could be less than the one half that you apparently have in mind since the Commonwealth is not a so-called community property state (where virtually all marital assets are split 50-50 between spouses).
    Answer Applies to: Virginia
    Replied: 12/9/2011
    Rhonda R. Werner Schultz, PL
    Rhonda R. Werner Schultz, PL | Rhonda R. Werner Schultz
    You will be entitled to a share of your spouse's 401K account in a divorce as it is considered marital property. The starting point for the division is equal, but the court can divide it differently based upon several factors, including the length of the marriage. Meaning, if your spouse earned his/her 401K for the 20 years before you were married and you married one year ago, there is a presumption that this will be equally divided but the court could decide to divide it other than equally based on the circumstances.
    Answer Applies to: Wisconsin
    Replied: 12/9/2011
    The McDonnell Law Firm, PLLC
    The McDonnell Law Firm, PLLC | Patrick J. McDonnell
    Any money paid into the 401K plan while married and before the commencement of the divorce action is considered marital property and yes, you are entitled to half of it. Any money paid into it before your marriage and after the commencement of the divorce action is her separate property and you are not entitled to any of that portion.
    Answer Applies to: New York
    Replied: 12/9/2011
    Ashman Law Office
    Ashman Law Office | Glen Edward Ashman
    Depending on what state you are in and other facts, you may be entitled to some of the 401K. The percentage may be other than half. You will need and want a lawyer to pursue your rights.
    Answer Applies to: Georgia
    Replied: 12/9/2011
    Attorney at Law | Aimee C. Robbins
    Only the "coverture" share is marital property. In other words, only the portion of a 401K plan that was saved during the marriage is marital property subject to division by the court at the time of the divorce. Many times 50% is the amount divided by the spouses. However Maryland is an equitable property state, thus the division is based on a number of factors such as other property received, income of the parties can play a factor too.
    Answer Applies to: Maryland
    Replied: 12/9/2011
    The Law Office of Erin Farley
    The Law Office of Erin Farley | Erin Farley
    In general, you are entitled to 1/2 of the community portion of the 401k, ie, 1/2 of the amount earned while you were married.
    Answer Applies to: California
    Replied: 12/9/2011
    Law Office of Joan M. Canavan | Joan Canavan
    In the event of a divorce, a spouse is entitled to one half of the portion of the 401k plan that was earned during the marriage. For example, if a couple has been married for 20 years and one spouse has a pension from working at a job for 25 years, the spouse wihtout the pension would be entitled to receive one-half of 20 years worth of the pension, not one half of the entire pension. There are financial professionals who would assist in calculating the exact dollar amount the non retirement spouse would be entitled to receive. Some of the larger companies who hold the pension may also be able to give you the value of the pension at the 20 year point.
    Answer Applies to: Massachusetts
    Replied: 12/9/2011
    Warner Center Law Offices of Donald F. Conviser
    Warner Center Law Offices of Donald F. Conviser | Donald F. Conviser
    You are entitled to 1/2 of the community property portion of your wife's 401K plan on divorce; the community property portion is that portion earned during the marriagebefore separation; the separate property portion is that portion earned before the marriage and after separation, as the case may be.
    Answer Applies to: California
    Replied: 12/9/2011
    Mevora Law Offices | Bradley C. Giglio
    Your question is best answered with a few questions: how much of the value of the 401(k) comes from contributions made to it during the marriage? Where did the funds come from that were put into the 401(k)? Were they from an account that solely held money earned prior to the marriage? The question is whether the 401(k) is marital, how much of it is marital, what is the financial situation of each party and how is the other marital property and debt being divided. Those, among other things, are factors in the answer.
    Answer Applies to: Illinois
    Replied: 12/9/2011
    H. Scott Basham, Attorney at Law, P.C. | H. Scott Basham
    Since you don't mention a pre-nuptial agreement, this would be for the court (judge or jury) to decide if you cannot come to an agreement between yourselves.
    Answer Applies to: Georgia
    Replied: 12/9/2011
    Attorney & Counselor at Law
    Attorney & Counselor at Law | John Hugger
    Colorado law provides for an equitable distribution of assets dependent on many factors, not necessarily an equal division. And with pensions and 401Ks monies may have been contributed before the marriage, so then you would first take the marital fraction of the 401K (that is, the total number of months your wife made contributions as the denominator, with the total number of months of marriage as the numerator (if the balance at the time of marriage can not be ascertained)); in other words, if she made contributions before the marriage the value on the date of marriage is subtracted from the present value to get the marital portion of the 401K; and then you are entitled to an equitable portion (dependent on statutory factors) which is often taken as one-half. Consult with an attorney to protect your interests.
    Answer Applies to: Colorado
    Replied: 12/9/2011
    Peyton and Associates | Barbara Peyton
    Yes, if it was acquired from his earnings during marriage. All property acquired during marriage which is not a gift or an inheritance is subject to equal or substantially equal division in a divorce case.
    Answer Applies to: California
    Replied: 12/9/2011
    Law Offices of Arlene D. Kock
    Law Offices of Arlene D. Kock | Arlene D. Kock
    You are entitled to 1/2 of any earnings acquired during the marriage. Earnings would also include monies from employment paid into retirement, IRA and 401K plans.
    Answer Applies to: California
    Replied: 12/8/2011
    Walnut Creek Family Law Center, Inc. | Merritt L. Weisinger
    12-8-11 Yes and no. You are entitled to one half of the community interest in the 401(k). If all of the contributions were between marriage and separation, you are entitled to one half. If, on the other hand, part was contributed before marriage, or after separation, there will be an apportionment as to characterization, probably on a time formula per Marriage of Brown. We use actuaries to do this. There is a variation of this because sometimes a person's contributions and employer's contributions are significantly more later than earlier and so a straight time formula may not be completely accurate but this argument, while cogent, is not often implemented because it is easier and cheaper to use a straight time formula.
    Answer Applies to: California
    Replied: 12/8/2011
    Law Offices of Frances Headley | Frances Headley
    Retirement plans, such as a 401k plan, that have been contributed to during marriage, are a community property asset. The court has jurisdiction to divide those assets. The exact division will depend upon what percentage of the asset the court finds to be community property.
    Answer Applies to: California
    Replied: 12/8/2011
    Fox Law Firm LLC
    Fox Law Firm LLC | Tina Fox
    The short answer is yes, depending upon how long you have been married and how long she has been on the job.
    Answer Applies to: Illinois
    Replied: 12/8/2011
    441 Legal Group, Inc.
    441 Legal Group, Inc. | Gareth H. Bullock
    Any portion of the 401K that accrued during the course of the marriage is subject to equitable distribution unless you signed a pre/post nuptial agreement waiving your interest in the 401K. Hope that helps.
    Answer Applies to: Florida
    Replied: 12/8/2011
    Vincent J. Bernabei LLC
    Vincent J. Bernabei LLC | Vincent J. Bernabei
    To the extent the 401(K) plan was acquired during your marriage, you are presumed to be entitled to half of it.
    Answer Applies to: Oregon
    Replied: 12/8/2011
    Law Offices of Louis M. Leibowitz, LLC
    Law Offices of Louis M. Leibowitz, LLC | Louis Leibowitz
    A retirement plan may be a marital asset. You may be entitled to a portion of it.
    Answer Applies to: Maryland
    Replied: 12/8/2011
    Goldberg Jones
    Goldberg Jones | Zephyr Hill
    You are entitled to half of the portion of the 401k that was earned during marriage.
    Answer Applies to: California
    Replied: 12/8/2011
    Gregory Reed, Ltd. | Gregory T. Reed
    Generally assets acquired during the marriage are considered marital assets. Illinois is an equity states in dissolution proceedings. That means each spouse is entitled to his or her fair share of the marital estate. If the 401(k) is found to me a marital asset, you may be entitled to a portion of her 401(k).
    Answer Applies to: Illinois
    Replied: 12/8/2011
    Phillip A. Arieff Attorney at Law | Phillip A. Arieff
    Theoretically, yes, you might be, when the variables for property division all are considered. These include length of marriage relative to 401K earnings, each party's income during marriage, and whether other property offsets that amount of money. Equitable division is the standard, but in real life individual components may or may not be split in half, depending on all the variables. Each party's transparent financial status is used by the attorneys an/or the court to fashion an idea of what is fair.
    Answer Applies to: Wisconsin
    Replied: 12/8/2011
    Wolfstone, Panchot & Bloch, P.S., Inc.
    Wolfstone, Panchot & Bloch, P.S., Inc. | Mark Brown
    Under Washington state community property law, all contributions made to the retirement of one spouse made during the marriage (together with all interest/accumulations thereon) is the community property of both spouses.
    Answer Applies to: Washington
    Replied: 12/8/2011
    John E. Kirchner, Attorney at Law
    John E. Kirchner, Attorney at Law | John Kirchner
    You are entitled to a fair share of all of the marital property. That does not mean each individual item is to be divided. "Fair" does not automatically mean 50/50. As a starting point, "fair" is whatever both parties believe is "fair". Absent an agreement, judges usually start with a 50/50 analysis, but there are no simplistic rules for division of property and what is fair requires an understanding of the entire financial situation. Only the portion of the 401k that was accumulated during the marriage will be considered "marital".
    Answer Applies to: Colorado
    Replied: 12/8/2011
    Thomas P. Carnes, Attorney & Mediator | Thomas P. Carnes
    To the extent that contributions were made to the 401K during marriage, these are community property and are divisible by the Court. To the extent the 401K was funded prior to marriage, a portion would be separate property as well. While we think in terms of "half," the Court divides community property in a manner that is just and right, fair and equitable. The Court would consider the entire community estate, as well as each of your separate estates, in dividing this and other community property. The Court may also consider fault in the breakup of the marriage.
    Answer Applies to: Texas
    Replied: 12/8/2011
    Law Office of Cassandra Savoy
    Law Office of Cassandra Savoy | Cassandra Savoy
    It depends. You have not provided sufficient information for a real answer. In general, when couples divorce, they split the liability and the assets. Most people forget that the debts are also shared. If you have been married more than ten years, you will likely get 50% of the pension. If less than ten years, it depends.
    Answer Applies to: New Jersey
    Replied: 12/8/2011
    Dunnings Law Firm
    Dunnings Law Firm | Steven Dunnings
    Factors such as how long have you been married and if you have a retirement plan are some things that would be considered.
    Answer Applies to: Michigan
    Replied: 12/8/2011
    Charles Regan Shaw, PLC
    Charles Regan Shaw, PLC | Charles R Shaw
    You would be entitled to half of what was accrued in the 401k during the marriage.
    Answer Applies to: Michigan
    Replied: 12/8/2011
    Beaulier Law Office
    Beaulier Law Office | Maury Beaulier
    Any asset acquired during the marriage including retirement plans, 401K plans, IRA's, Stocks or Stock Options would be considered marital property capable of division in a divorce.
    Answer Applies to: Minnesota
    Replied: 12/8/2011
    The Davies Law Firm, P.A.
    The Davies Law Firm, P.A. | Robert F. Davies, Esq.
    This is the first and most important thing, you need a divorce attorney. Otherwise you will be at the mercy of someone like me which is not good. Yes, your spouse's 401K is subject to equitable distribution.
    Answer Applies to: New Jersey
    Replied: 12/8/2011
    Law Office of William C. Wood, LLC | William C. Wood
    The portion of your spouse's 401k account that has accrued during the marriage would be considered marital property subject to equitable division. That would generally mean half, but depends on what other assets there are, whether alimony is appropriate, etc.
    Answer Applies to: Maryland
    Replied: 12/8/2011
    Odin, Feldman & Pittleman, P.C.
    Odin, Feldman & Pittleman, P.C. | Richard A. Gray
    You are each entitled to one-half of the marital share of any retirement accounts owned by either party during the marriage. The marital share is determined as of the value of the retirement assets from the date of marriage to the date of final separation plus losses and gains on the marital share (See Va. Code 20-107.3.g) You do not receive the funds in a lump sum; rather they are rolled over into a new retirement account in your name or added to an existing qualifying account. If you do elect to withdrawn some or all of the funds, it is taxed. 10% off the top and the remainder at your ordinary income tax rate.
    Answer Applies to: Virginia
    Replied: 12/8/2011
    Law Office Of Jody A. Miller
    Law Office Of Jody A. Miller | Jody A. Miller
    There re no "entitlements" in property division. Based on the law and the facts of your case, you can ask for a portion of the account, if it is marital property (acquired during the marriage), and if you can't reach an agreement with your spouse the judge will decide how much you would receive based on the law and facts of your case.
    Answer Applies to: Georgia
    Replied: 12/8/2011
    SHAPIRO LAW GROUP | ERIC L. SHAPIRO
    The answer is complicated. It depends on how long you are married and when the 401k was established. At worst, you should be entitled to an equitable portion of the amount of funds put in the account during the time of the marriage. In many cases, a 50/50 split is normal, but not mandated.
    Answer Applies to: Georgia
    Replied: 12/8/2011
    Anderson & Boback | Janice L Boback
    You are entitled to an equitable share of the marital portion if you divorce. This means you are entitled to some percentage (whatever is fair) of the portion earned during the marriage.
    Answer Applies to: Illinois
    Replied: 12/8/2011
    Donaldson Stewart, PC
    Donaldson Stewart, PC | Monica H. Donaldson Stewart
    Generally speaking, each spouse's retirement benefits accumulated during the marriage are subject to division in divorce in AZ.
    Answer Applies to: Arizona
    Replied: 12/8/2011
    Michael Apicella
    Michael Apicella | Apicella Law and Mediation
    Unless there is a prenup that limits division of a 401k the was opened, or grew in value, during marriage, then yes, any 401k value that accrued from the wedding date to "date of separation" is community property. Hence, that accrual amount is subject to equal division upon divorce.
    Answer Applies to: California
    Replied: 12/8/2011
    Glenn E. Tanner
    Glenn E. Tanner | Glenn E. Tanner
    Maybe. The court is required to make a fair and equitable division of all your debts and assets.
    Answer Applies to: Washington
    Replied: 12/8/2011
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