Do I have any right to the 401k in a divorce? 8 Answers as of April 14, 2011

If my husband and I have been married 13 years and are going to start divorce proceedings do I have any right to the 401k? I made no contributions to it but we cut corners financially in areas of our life in order to contribute higher amounts to it. So even though I did not put money in physically we made sacrifices in order to save.

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Goodman, Dicus, and Teinert, LLP
Goodman, Dicus, and Teinert, LLP | Paul M. Teinert
So long as there was no written agreement stating that the 401K would exclusively go to the husband you are entitled to half of the 401K assets that were contributed during the marriage, regardless of who made the contributions.
Answer Applies to: California
Replied: 4/14/2011
Edwin Fahlen Attorney at Law
Edwin Fahlen Attorney at Law | Edwin Fahlen
Absent a written agreement to the contrary, you are entitles to one-half of the value of the 401(k) that was accumulated during the marriage. It does not matter which one of you deposited the money. If the contributions were earned during the marriage, the contributions are community property.
Answer Applies to: California
Replied: 4/7/2011
Michael Apicella
Michael Apicella | Apicella Law and Mediation
Unless there is a premarital agreement that specifies the 401k as one spouse's separate property, contributions made during marriage, as well as interest and increases in value, are community property. Community property is divided equally upon divorce. If you have more questions, feel free to call my office.
Answer Applies to: California
Replied: 4/7/2011
Goldberg Jones
Goldberg Jones | Zephyr Hill
Yes. You are entitled to half of what was earned during the marriage.
Answer Applies to: California
Replied: 4/7/2011
Warner Center Law Offices of Donald F. Conviser
Warner Center Law Offices of Donald F. Conviser | Donald F. Conviser
Yes, you have a community property right to the funds contributed to the 401K during the marriage, and their investment increases or decreases. Hire an experienced Family Law Attorney to represent your interests, and, among other things, get a QDRO filed, entered and served on the 401K plan to protect and enforce your community property rights in that plan.
Answer Applies to: California
Replied: 4/7/2011
    Bartholomew & Wasznicky LLP
    Bartholomew & Wasznicky LLP | Hal D. Bartholomew
    All contributions made to the 401k during marriage are community property. All the contributions were from community earned income. The 401k maybe divided equally between you and your husband. Your 1/2 share may be transferred into an IRA under your name. Do not make any transfer until there is an agreement with a court order.
    Answer Applies to: California
    Replied: 4/7/2011
    Law Office of L. Paul Zahn
    Law Office of L. Paul Zahn | Paul Zahn
    In California, any contribution during marriage from a community property source (i.e., wages) are community property and subject to equal division. Thus, it doesn't matter if only one spouse "contributed" because it was actually the community which contributed. If you are looking for an attorney, please contact me for a free consultation.
    Answer Applies to: California
    Replied: 4/7/2011
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