Can I use a post nuptual aggreement to protect my 401K in a divorce? 17 Answers as of December 05, 2010

Can a post nuptial agreement protect my 401K plan during our divorce? If so, how do I obtain one? Can I get one directly from a divorce lawyer? Thanks.

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Beaulier Law Office
Beaulier Law Office | Maury Beaulier
A post nuptial agreement under Minnesota law has very strict requirements in order to be binding. First, both parties must be represented by counsel. The document must be witnesses and notarized in the same way that a Will is executed. The agreement, to be binding, must also be deemed reasonable both at the time it is executed and at the tiem it is enforced. Whether that allows protection of a 401K depends on the particular circumstances surrounding the marriage and execution of the document.
Answer Applies to: Minnesota
Replied: 12/5/2010
DiManna Law Office, LLC.
DiManna Law Office, LLC. | Dawn DiManna
Yes, you should be able to protect the 401k through a pre-nup. You should have an attorney draw this document up.
Answer Applies to: New Hampshire
Replied: 12/3/2010
John E. Kirchner, Attorney at Law
John E. Kirchner, Attorney at Law | John Kirchner
Legally, yes; parties to a marriage can contractually waive any claims to all or some of the marital property. Whether that agreement will be enforced in a future divorce case depends on a lot of different factors. Using a lawyer to prepare that agreement is the preferred
way to make sure that it will be enforceable because a lawyer can ensure that all the necessary requirements for an enforceable agreement are satisfied. But, keep in mind that one lawyer cannot represent both parties. One of the strongest arguments to enforce an agreement in the future is when both sides acted with the advice of their own lawyer.
Answer Applies to: Colorado
Replied: 12/3/2010
Cutter & Lax, Attorneys at Law
Cutter & Lax, Attorneys at Law | Matthew E. Lax
Yes you can. If you need an attorney to help you please give me a call.
Answer Applies to: California
Replied: 12/3/2010
441 Legal Group, Inc.
441 Legal Group, Inc. | Gareth H. Bullock
Yes it can. Go to a divorce attorney or law library.
Answer Applies to: Florida
Replied: 12/3/2010
    Reeves Law Firm, P.C.
    Reeves Law Firm, P.C. | Roy L. Reeves
    Yes; though an attorney; and yes.

    A post nuptual agreement and a Partition Agreement are the same thing (I will use the PA as opposed to PN). The intent is to declare after the fact that the two of you have an agreement that certain property is and will remain separate property. Your spouse has to sign off stating that they understand and agree to convert any portion of the 401K accrued or saved during the marriage to your separate property and that any future contributions or dividends, etc. will also be separate property.

    Since it is an agreement (Contract) to keep it safe you should be giving your spouse something in return, preferably within the agreement itself - ie your spouse will get his/her 401K the same way.

    Any lawyer can do one, the reason I would most highly recommend you use a divorce lawyer is because it will be a divorce lawyer who will be trying to take it apart in the future (and trust me, 90% of the time, one side realizes later he or she made a bad deal and they want out and they always want out at the divorce stage). A divorce lawyer, such as myself, knows what tools to use to destroy a Partition Agreement (at least what to look for to determine if it can be destroyed) and therefore, can make those corrections/adjustments now, while everyone is acting friendly.

    Hope this helps. I would be happy to discuss the matter with you in person or on the phone. You can also e-mail me directly if you need more specific information.
    Answer Applies to: Texas
    Replied: 12/3/2010
    Law Office of Curry & Westgate
    Law Office of Curry & Westgate | Patrick Curry
    A prenup is just a contract, so you can put anything in the prenup as your separate property. You need an attorney to prepare the prenup and your spouse needs an attorney to review and sign off on it.
    Answer Applies to: California
    Replied: 12/3/2010
    The Connelly Firm P.C.
    The Connelly Firm P.C. | Thomas Connelly
    I have not handled any post nuptial agreements. I imagine its simply a contract between you and your spouse as to the disposition of certain assets upon divorce. The real question: does your spouse agree that you two should have such an agreement? If not you may invite an actual divorce. Good luck.
    Answer Applies to: Pennsylvania
    Replied: 12/3/2010
    Cody and Gonillo, LLP
    Cody and Gonillo, LLP | Christine Gonilla
    Not sure what you mean here. The 401K is considered a marital asset, but oftentimes the marital portion can be limited to the amount accumulated during the marriage. If a divorce has already been started the Automatic Orders prevent any distribution of any assets until the final resolution unless the parties agree in writing; but you should not expect to enter into such an agreement without some consideration to the other spouse.
    Answer Applies to: Connecticut
    Replied: 12/3/2010
    Steven D. Keist, Attorney at Law
    Steven D. Keist, Attorney at Law | Steven D. Keist
    This is a question that cannot be answered without more information. However, generally parties can enter into agreements regarding the disposition of any of their assets and these may be upheld if there was full disclosure and both parties had the right to have legal counsel review the documents.
    Answer Applies to: Arizona
    Replied: 12/3/2010
    Law Office of Michael E. Hendrickson
    Law Office of Michael E. Hendrickson | Michael E. Hendrickson
    Maybe, maybe not, depending upon what the post-nuptial says and the relevant facts surrounding the case in general.
    Answer Applies to: Virginia
    Replied: 12/2/2010
    Warner Center Law Offices of Donald F. Conviser
    Warner Center Law Offices of Donald F. Conviser | Donald F. Conviser
    It is possible, if your spouse agrees to it, with each party represented by counsel and a well-drafted Postnuptial agreement entered, with full disclosures made, but seeking such a Postnuptial agreement from your spouse might result in marital difficulties with your spouse.
    Answer Applies to: California
    Replied: 12/2/2010
    Michael Apicella
    Michael Apicella | Apicella Law and Mediation
    Absolutely! Protecting your assets acquire before marriage, as well as property they acquire during marriage (such as accruals to a retirement account) is one of the primary reasons why people enter into premarital agreements. Feel free to give me a call if you'd like to discuss further. I offer a free telephone consult. Thanks.
    Answer Applies to: California
    Replied: 12/2/2010
    Maclean Chung Law Firm
    Maclean Chung Law Firm | G. Thomas MacLean Jr.
    Yes, you can use a postnuptial agreement, also called a marital agreement, to establish that your 401K plan will remain your sole separate property
    after a divorce. An attorney can help you prepare and draft such an agreement, and it is highly recommended you work with an attorney to insure that
    such an agreement would be enforceable.
    Answer Applies to: California
    Replied: 12/2/2010
    Charles Regan Shaw, PLC
    Charles Regan Shaw, PLC | Charles R Shaw
    Yes, contact our office for same.
    Answer Applies to: Michigan
    Replied: 12/2/2010
    Diefer Law Group, P.C.
    Diefer Law Group, P.C. | Abel Fernandez
    Yes, and yes. You need to consult with an attorney to get this done right. There are requirements you will need,
    Answer Applies to: California
    Replied: 12/2/2010
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