Do I have to give him half of my 401k and if so, how does that work? 19 Answers as of January 31, 2014

I started my 401k before we were married and continued to contribute to it since. We've been married for 6 years.

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The Law Firm of Jessica M. Cotter, P.L.L.C. | Jessica M. Cotter
In Arizona the community property portion of a 401(K) is the portion earned or contributed to during the marriage. One way to calculate it would be to take the number of years married and contributing to the plan and divide that by the number of years you contributed to the plan.
Answer Applies to: Arizona
Replied: 1/31/2014
Joanna Mitchell & Associates, P.A.
Joanna Mitchell & Associates, P.A. | Joanna Mitchell
In Florida, only the portion that was accrued during the marriage is subject to division in a divorce. If you are uncertain how to proceed, you should consult with an attorney who can assist you with the process.
Answer Applies to: Florida
Replied: 1/31/2014
Kirby G. Moss PC | Kirby G. Moss
There is 50/50 presumption for division of marital property however the part accumulated pre marriage would be separate. Legal advice necessary here.
Answer Applies to: Indiana
Replied: 1/31/2014
The Law Office of James P Peterson
The Law Office of James P Peterson | James P Peterson
If that were your only asset then the other spouse would be entitled to one half of that amount contributed during the marriage.
Answer Applies to: Texas
Replied: 1/31/2014
Peters Law, PLLC
Peters Law, PLLC | Mark T. Peters, Sr.
If the 401k has been in existence for 10 years, then you owe him 1/2(6/10) value of 401k on the date of the divorce. In other words, he gets of the 401k that accrued during marriage. If he has a 401k, the same applies to his, or to any other retirement plan he may have.
Answer Applies to: Idaho
Replied: 1/31/2014
    Diane l. Berger | Diane L. Berger
    Your spouse would potentially be entitled to one-half of what was acquired during your marriage. What you had accumulated prior to your marriage would be considered pre-marital and would be yours.
    Answer Applies to: Nebraska
    Replied: 1/31/2014
    Graves Law Firm
    Graves Law Firm | Steve Graves
    Nothing is ironclad, but generally whatever increases in the account's value have occurred during the marriage is community property and a 50-50 split of that portion is likely.
    Answer Applies to: Texas
    Replied: 1/31/2014
    Law Offices of Lauren H. Kane | Lauren H. Kane
    He will be entitled to a portion that accrued during the marriage.
    Answer Applies to: Pennsylvania
    Replied: 1/31/2014
    Peyton and Associates | Barbara Peyton
    He is entitled to one half of anything added to the account during marriage. You should get a lawyer to help you with this.
    Answer Applies to: California
    Replied: 1/31/2014
    Attorney at Law | Aimee C. Robbins
    Your wife would only be entitled to ask for the "coverture" amount of the pension, i.e. only half of the amount you were able to save during the marriage.
    Answer Applies to: Maryland
    Replied: 1/31/2014
    David A. Browde, P.C.
    David A. Browde, P.C. | David Browde
    Not half - but an "equitable" portion.
    Answer Applies to: New York
    Replied: 1/31/2014
    Law Offices of Arlene D. Kock
    Law Offices of Arlene D. Kock | Arlene D. Kock
    You are only obligated to divide as community property the portion of the 401(k) earned between date of marriage and date of separation.
    Answer Applies to: California
    Replied: 1/31/2014
    Elizabeth Jones, A Professional Corporation
    Elizabeth Jones, A Professional Corporation | Elizabeth Jones
    He gets 50 per cent of the value from the date of marriage to the date of separation. That is there initial of community property.
    Answer Applies to: California
    Replied: 1/31/2014
    John Russo | John Russo
    Most likely 50% of the marital portion, and it is divided by QDRO.
    Answer Applies to: Rhode Island
    Replied: 1/31/2014
    Barr, Jones & Associates LLP
    Barr, Jones & Associates LLP | Andrew Brasse
    In Ohio, yes, you will have to give him half of the 401k that you have put into it for the years that you were together. At the end of the divorce, there is paperwork that you send to your job to get him his half.
    Answer Applies to: Ohio
    Replied: 1/31/2014
    Law Offices of Stephanie Lee Ehrbright, Esq.
    Law Offices of Stephanie Lee Ehrbright, Esq. | Stephanie Lee Ehrbright
    You don't absolutely have to give him half. You could negotiate for something else with the same value or he could chose to waive his right to it. Also, only the portion that was earned while you were married is community property. He has no claim to what was contributed to it before you were married nor after.
    Answer Applies to: Arizona
    Replied: 1/31/2014
    Mediation Services of Southwest Florida
    Mediation Services of Southwest Florida | Dennis J. Leffert, J.D.
    I think reasonably, your spouse would be entitled to 1/2 of the amount contributed during the marriage only. Good luck.
    Answer Applies to: Florida
    Replied: 1/31/2014
    Rouse & Co. LLC
    Rouse & Co. LLC | S. Carlton Rouse, Esq.
    If you are represented by an attorney, these are the types of issues you need to discuss with him/her. If you are unrepresented, this is a real world example of why you need to seek professional assistance with your divorce. Equitable division only applies to "marital" assets. An attorney working on your behalf will ask for a full picture of the finances created during your marriage as well as other additional facts that will help him/her grapple with issues related to alimony/spousal support/child support/division of attorney fees, etc.
    Answer Applies to: Georgia
    Replied: 1/31/2014
    GordenLaw, LLC
    GordenLaw, LLC | Vanessa J. Gorden
    The answer to your question depends on many, many factors. The portion of your 401k earned before you married is premarital and does not need to be divided, generally. Whether/how much to divide a retirement account depends on how much is in the marital estate, how many debts and other assets exist, etc. In the event you do owe your spouse a cash settlement to equalize the estate and it needs to come from your 401k, the attorneys would draft a Qualified Domestic Relations Order that allows him to roll it over into his retirement. Because this is so fact-specific, you really need the help of a competent attorney to advise you of your rights and responsibilities. Best wishes.
    Answer Applies to: Nebraska
    Replied: 1/31/2014
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