How do I get the 401K in divorce? 28 Answers as of June 09, 2011

How do I get the 401K in divorce?

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Beresford Booth PLLC
Beresford Booth PLLC | S. Scott Burkhalter
In Washington State, assets and debts are divided fairly and equitably. A 401k can be transferred with a Qualified Domestic Relations Order (QDRO).
Answer Applies to: Washington
Replied: 6/9/2011
Howard W. Collins, Attorney at Law
Howard W. Collins, Attorney at Law | Howard W. Collins
In Oregon, If the 401k is not in your name, then it will have to awarded to you in the Judgment of Dissolution.
Answer Applies to: Oregon
Replied: 6/8/2011
Berner Law Group, PLLC
Berner Law Group, PLLC | Jack Berner
Hire an experienced attorney! If you're a Western Washington resident, feel free to contact my office for a free, no obligation consultation regarding your situation.
Answer Applies to: Washington
Replied: 6/8/2011
Deal & Hooks, LLC
Deal & Hooks, LLC | Shawn P. Hooks
Typically, retirement that both parties accrued during the marriage should be split at the end of the divorce. That split is typically an even split unless it has been altered by agreement or if the court rules that an uneven split is more fair. Once there is an order that the retirement or 401K should be split the parties must effectuate the split either by cashing it in or doing a QDRO.
Answer Applies to: Ohio
Replied: 6/8/2011
Law Office of Karen A. Clark, L.L.C.
Law Office of Karen A. Clark, L.L.C. | Karen A. Clark
You left out some pivotal facts in your query. Is it your retirement account or your spouse's/partners? Are you married or in a domestic partnership? What is the length of the relationship? How long have you or your spouse/partner had the 401k? Are you in a community property state? The best way to determine your financial obligations and rights when preparing to end a marriage or domestic partnership is to meet with a Financial Divorce and Home Lending Specialist.
Answer Applies to: Washington
Replied: 6/8/2011
    Michael Anthony Wing, P.C.
    Michael Anthony Wing, P.C. | Michael Anthony Wing
    By agreement or if you have been married for ten years or more it is in play. Stay well.
    Answer Applies to: Alabama
    Replied: 6/8/2011
    Law Office of Curry & Westgate
    Law Office of Curry & Westgate | Patrick Curry
    If you live in the west, you are entitled to one half of the community property interest and all of your separate property interest in the 401k.
    Answer Applies to: California
    Replied: 6/7/2011
    Law Office of Daniel B. Rubanowitz, APC
    Law Office of Daniel B. Rubanowitz, APC | Daniel B. Rubanowitz
    Generally, if the funds in a 401K are deposited into the 401K during marriage, they are community property and each party is entitled to half. You can obtain these funds pursuant to a settlement or upon entry of judgment. If you want 100% of the 401K, you would likely have to equalize the division of assets by off-setting that amount with other assets, whether it be other financial accounts or real/personal property. You should consult with an attorney to protect your rights. Good luck.
    Answer Applies to: California
    Replied: 6/8/2011
    Joanna Mitchell & Associates, P.A.
    Joanna Mitchell & Associates, P.A. | Joanna Mitchell
    In a divorce, a 401(k) is a marital asset that is subject to equitable distribution. Equitable distribution essentially means "fair distribution", which usually means 50/50. The actual portion of a 401(k) awarded to someone who is not the employee is done through a Qualified Domestic Relations Order (QDRO) being entered in order to transfer the funds.
    Answer Applies to: Florida
    Replied: 6/7/2011
    Warner Center Law Offices of Donald F. Conviser
    Warner Center Law Offices of Donald F. Conviser | Donald F. Conviser
    Whether it was your 401K or your spouse's 401K, you don't, and he doesn't get it all, unless there are other community assets to counterbalance an award of the community interest in the 401K to one party. Typically, the community interest in a 401K is divided 50/50, via a Qualified Domestic Relations Order pursuant to language in the divorce Judgment requiring division of that community interest. If the 401K was all earned during the marriage, and the contributing party is no longer working for the company, the 401K would be divided 50/50. If the contributing party was contributing to the 401K before the marriage and/or remains contributing to the 401K after separation, the premarital and post-separation contributions are separate property of the contributing party, so the community portion of the 401K would be only that portion that was earned during the marriage before separation, plus or minus the plan's investment gains and/or losses.
    Answer Applies to: California
    Replied: 6/7/2011
    Theodore W. Robinson, P.C.
    Theodore W. Robinson, P.C. | Theodore W. Robinson
    You make a claim for it in the divorce action and the Court will address the situation fairly. Good luck.
    Answer Applies to: New York
    Replied: 6/7/2011
    Cody and Gonillo, LLP
    Cody and Gonillo, LLP | Christine Gonilla
    There is a special order that is entered to transfer retirement between spouses in a divorce.
    Answer Applies to: Connecticut
    Replied: 6/7/2011
    Fox Law Firm LLC
    Fox Law Firm LLC | Tina Fox
    How much of the 401k you are entitled to in IL depends on the length of the marriage. I encourage to contact the office to set up an appointment for a free consultation to discuss your specific situation.
    Answer Applies to: Illinois
    Replied: 6/7/2011
    Glenn E. Tanner
    Glenn E. Tanner | Glenn E. Tanner
    When you divorce in Washington, the court divides all your assets and debts. If you get part or all of the 401k, then you'll enter a separate order giving you that. Contact the administrator for the fund for examples of such an order.
    Answer Applies to: Washington
    Replied: 6/7/2011
    Beaulier Law Office
    Beaulier Law Office | Maury Beaulier
    A court may divide any assets as part of a divorce. If you are awarded a share of a pension, retirement asset or 401K, the asset is often divided by a separate order called a Qualified Domestic Relations Order (QDRO) that is drafted by your attorney.
    Answer Applies to: Minnesota
    Replied: 6/6/2011
    John E. Kirchner, Attorney at Law
    John E. Kirchner, Attorney at Law | John Kirchner
    If the court awards you all or a part of a 401k account in the property settlement, the Court must then enter a Qualified Domestic Relations Order (QDRO) that is acceptable to the Plan Administrator and that spells out what you are to get - either a dollar amount or a percentage amount.
    Answer Applies to: Colorado
    Replied: 6/7/2011
    Law Office of Robert L. Fiedler
    Law Office of Robert L. Fiedler | Robert L Fiedler
    I assume that you mean your spouse's 401k. If you mean, how do you get the entire thing or even a part of it, either the two of you have to agree as to the share you are getting or a judge has to order it. Regardless, a document known as a QDRO would need to be drafted and approved by the court before you could get your share.
    Answer Applies to: Connecticut
    Replied: 6/7/2011
    Gregory T. Buckley, Attorney at Law
    Gregory T. Buckley, Attorney at Law | Gregory T. Buckley
    Whose 401K is it? Generally, the value of such an account that was accrued during a marriage is considered a marital asset and is subject to equitable distribution by the courts.
    Answer Applies to: Florida
    Replied: 6/7/2011
    Seattle Divorce Services
    Seattle Divorce Services | Michael V. Fancher
    Under Washington law, if the two of you cannot agree on the division of property, then the court will decide. Basically, if you particularly want a specific asset, you will need to trade off something else of similar value for it.
    Answer Applies to: Washington
    Replied: 6/7/2011
    Law Office of James Lentz
    Law Office of James Lentz | James Lentz
    Ownership post-divorce of IRAs KEOUGHs and 401(k)s is negotiated as a part of the marital property. If money needs to be taken from one, a special order called a QDRO is required to complete the transaction and order.
    Answer Applies to: Ohio
    Replied: 6/7/2011
    Law Offices of John J. Ferry, Jr.
    Law Offices of John J. Ferry, Jr. | John J. Ferry, Jr.
    It depends. At least in Pennsylvania, you need to determine if it is marital or non-marital property. If it is marital property, who it goes to or how it is split will depend on the facts of your case.
    Answer Applies to: Pennsylvania
    Replied: 6/7/2011
    Ashman Law Office
    Ashman Law Office | Glen Edward Ashman
    You get a lawyer, seek it, and, if you prevail, a QDRO is drafted.
    Answer Applies to: Georgia
    Replied: 6/7/2011
    Michael Apicella
    Michael Apicella | Apicella Law and Mediation
    You're entitled to half the value of the 401k that accrued from the date of marriage to the date of separation, with a few exceptions. For instance, the funds used to open the 401k came from a separate property source, or there is a premarital agreement that specifies a different treatment of any 401k upon divorce.
    Answer Applies to: California
    Replied: 6/7/2011
    Law Office of Richard B. Kell
    Law Office of Richard B. Kell | Richard B. Kell
    You will need to fight for, and obtain, a Qualified Domestic Relations Order (QDRO) that divides (or conveys) the retirement funds. A divorce attorney can help you with this.
    Answer Applies to: Massachusetts
    Replied: 6/6/2011
    Goolsby Law Office
    Goolsby Law Office | Richard Goolsby
    In Georgia, there would be several ways to get the 401K, or at least a good portion of it. One way, the easiest, would be to negotiate and include it as part of a settlement agreement. But in any event, it is important that you retain an experienced divorce attorney to help you obtain an equitable property division, as well as to help you otherwise get a fair shake in your divorce.
    Answer Applies to: Georgia
    Replied: 6/6/2011
    Naomi Hirayasu Attorney at Law
    Naomi Hirayasu Attorney at Law | Naomi Hirayasu
    If the Hawaii courts have jurisdiction, if it has been earned during the marriage, then you are entitled to 1/2 of the 401K earned during the marriage. The other party is also entitled to 1/2 of yours should you have one. If you have further questions, please feel free to contact me at the phone number or email address below.
    Answer Applies to: Hawaii
    Replied: 6/6/2011
    Law Office Of Jody A. Miller
    Law Office Of Jody A. Miller | Jody A. Miller
    In Georgia, a 401(k) is marital property and subject to equitable division to the extent that the 401(k) was accumulated during the marriage. You need to consult with an attorney regarding specific strategies for property division in a divorce case.
    Answer Applies to: Georgia
    Replied: 6/6/2011
    Law Office of L. Paul Zahn
    Law Office of L. Paul Zahn | Paul Zahn
    That isn't a question which can easily be answered in this forum. If you are in my area, contact me for a free consultation and I can better answer your question.
    Answer Applies to: California
    Replied: 6/6/2011
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