Am I entitled to my spouse's 401K plan if we divorce? 48 Answers as of December 15, 2011

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.

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.

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.

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.

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.

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.

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.

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.

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.

The short answer is yes, depending upon how long you have been married and how long she has been on the job.

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.

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.

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.

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.

To the extent the 401(K) plan was acquired during your marriage, you are presumed to be entitled to half of it.

You are entitled to half of the portion of the 401k that was earned during marriage.

A retirement plan may be a marital asset. You may be entitled to a portion of it.

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.

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).

The portion of the 401K which was acquired during the marriage is subject to division. The court will determine whether the marital portion should be divided equally. The law in Illinois does not require assets to be divided equally.

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.

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".

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.

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.

Factors such as how long have you been married and if you have a retirement plan are some things that would be considered.

You would be entitled to half of what was accrued in the 401k during the marriage.

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.

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.

Generally speaking, each spouse's retirement benefits accumulated during the marriage are subject to division in divorce in AZ.

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.

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.

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.

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.

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.

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.

Maybe. The court is required to make a fair and equitable division of all your debts and assets.