How long do you need to be married to qualify for spouses assets in a divorce? 37 Answers as of August 15, 2011

My sister plans to divorce her husband and their 10th anniversary is this October. I understand that for some assets (such as a 401K) there may be some time requirements for how long married. If there is, how is the 10 year period measured. Is it by date of filing or by date on the final divorce decree? If it is determined by date of filing, does it matter who files?

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Beresford Booth PLLC
Beresford Booth PLLC | S. Scott Burkhalter
The Court will look at both community and separate assets when divorcing. The Court will make a fair and equitable division of assets. There is no time requirement.
Answer Applies to: Washington
Replied: 8/5/2011
Neville J. Bedford Attorney at Law
Neville J. Bedford Attorney at Law | Neville J. Bedford
Generally speaking, the wedding date will be the date of valuation for deduction of premarital portion of a retirement fund.
Answer Applies to: Rhode Island
Replied: 8/3/2011
Horizons Law Group, LLC
Horizons Law Group, LLC | Michelle B. Fitzgerald
It is determined by date of final divorce hearing; however, the 10years applies only to entitlement from social security benefits, has nothing to do with property division, which is 50/50 presumption in state of Wisconsin.
Answer Applies to: Wisconsin
Replied: 8/3/2011
Gregory T. Buckley, Attorney at Law
Gregory T. Buckley, Attorney at Law | Gregory T. Buckley
The main factor in determining whether an item is marital property is whether or not the item was acquired during the marriage. If so, it is almost always considered to be marital property and thus subject to equitable distribution.
Answer Applies to: Florida
Replied: 8/3/2011
Dunnings Law Firm
Dunnings Law Firm | Steven Dunnings
She does not have to worry. The only other consideration is that if her husband makes more money than she does, then she needs to remain married to him for ten years in order to qualify for his Social Security Retirement benefits
Answer Applies to: Michigan
Replied: 8/3/2011
    Michael Rose Attorney at Law
    Michael Rose Attorney at Law | Michael Rose
    In California property is community with some exceptions. Each item has to be looked at and determined if it is community or separate.
    Answer Applies to: California
    Replied: 8/3/2011
    Law Office of Roianne H. Conner
    Law Office of Roianne H. Conner | Roianne Houlton Conner
    The end of the marriage is at the date of filing the petition of divorce. If the husband files then it would still not make a difference as they had not been married ten years.
    Answer Applies to: Alabama
    Replied: 8/2/2011
    Beaulier Law Office
    Beaulier Law Office | Maury Beaulier
    You never qualify for a "spouse's Assets." Any assets acquired during the marriage are marital and capable of division. Any assets characterized as non-marital, would not be divisible in most cases. That includes assets acquired before marriage, assets acquired by inheritance, gifts to one party but not both. Any other assets, such as 401k or pension, are divisible regardless of the length of marriage, but only those amounts that accrued during the marriage.
    Answer Applies to: Minnesota
    Replied: 8/2/2011
    Law Office of Patricia Van Haren
    Law Office of Patricia Van Haren | Patricia Van Haren
    The 10 years refers to spousal support not community property. She would be entitled to 1/2 of the community share of the 401K which was accumulated during the marriage. The 10 year is the date of separation (which is the date in which one of the parties communicates to the other that he marriage is over). There is no bearing on who files first as to division of property.
    Answer Applies to: California
    Replied: 8/2/2011
    Meriwether & Tharp LLC
    Meriwether & Tharp LLC | Patrick Meriwether
    As general rule in Georgia, any asset accumulated during the course of the marriage as a result of marital efforts is subject to equitable distribution, regardless of whose name the asset is listed. This includes real estate, retirement accounts, bank accounts, investment accounts, automobiles, etc. There is no legal time limit for marriage concerning the equitable division of an asset accumulated during the course of the marriage, including a traditional 401k. Some assets, such as certain railroad pensions and state teacher pensions, however, are not divisible by a Court, but the Court can offset those assets with the distribution of another asset. S
    Answer Applies to: Georgia
    Replied: 8/2/2011
    Ashman Law Office
    Ashman Law Office | Glen Edward Ashman
    Time periods matter more for military pensions. 401K division is a complex issue that should be discussed with a lawyer. The division is done based on equitable division, so it could be
    Answer Applies to: Georgia
    Replied: 8/2/2011
    The Davies Law Firm, P.A.
    The Davies Law Firm, P.A. | Robert F. Davies, Esq.
    yes, it matters when she files, and it matters at least a little who files for the divorce. but there is no hard and clear rule on 10 years. a ten year marriage is probably going to be considered a long term marriage. I would need more details. I can help you with this. And I will tell you up front what it will cost to do this for you.
    Answer Applies to: New Jersey
    Replied: 8/2/2011
    Law Office of Michael W. Bugni
    Law Office of Michael W. Bugni | Jay W. Neff
    First, some background on property division in a divorce. If the two of you can agree on how to divide the property, then, the two of you can divide it just about any way you want. However, if the two of you are unable to agree, then, it will be up to the court to divide the property and debts. If the court is going to divide the property, it first has to classify it. All of the property is going to be classified as your separate property, her separate property, or community property. Which of these classifications a particular piece of property falls into will depend on how and when the property was obtained. In most cases, property obtained during the marriage will be community property. Once the property is classified, how it gets divided will depend on a number of factors. Some of the factors that the court may consider are: the duration of the marriage, the ages of the parties, the health of the parties, the educational background of the parties, the employment history of the parties, and each party's future prospects. The court then has to come up with what the court believes is a fair and equitable division of all of the property using these and other factors. Now, if there is enough community property so that the court can come up with a fair division using just the community property, the court will generally do that. However, if there is not enough community property for the court to reach what it believes is a fair division, then, it can invade separate property. Now, as to your specific case: Now, as you can see from the above discussion, there is no particular time threshold. The exception to this is the division of military retirement pay. If you are dividing that, then, there are some fairly specific time lines that have to be met. However, as long as you are not dividing military retirement, then, the duration of the marriage is just one of a number of factors that the court has to think about, and, potentially, all of the property is on the table for division. Finally, for purpose of dividing debts and property, it makes no difference who file.
    Answer Applies to: Washington
    Replied: 8/2/2011
    Goolsby Law Office
    Goolsby Law Office | Richard Goolsby
    You may be confusing this issue with military retirement. We recommend that your sister retain a divorce attorney ASAP to discuss all her rights and options, including her rights as to an equitable property division as to all assets. Good luck!
    Answer Applies to: Georgia
    Replied: 8/2/2011
    Bagwell Holt Smith Jones & Crowson, P.A.
    Bagwell Holt Smith Jones & Crowson, P.A. | John G. Miskey IV
    There is no minimum time period for dividing an asset such as a 401(k). I encourage her to speak with an attorney and come up with a plan to resolve the case through settlement.
    Answer Applies to: North Carolina
    Replied: 8/2/2011
    Joanna Mitchell & Associates, P.A.
    Joanna Mitchell & Associates, P.A. | Joanna Mitchell
    Any assets acquired during a marriage (that are not gifts or inheritances or acquired by non-marital funds, such as an inheritance) are considered marital assets subject to equitable distribution. It doesn't matter whether the marriage is 6 months long or 16 years long. However, how those assets are divided can be affected by the length of marriage. In nearly all cases though, marital assets are divided 50/50. This would mean that if he started the 401k plan during the marriage, then it is considered a marital asset and she should be entitled to one half, possibly more if other relevant factors exist. The valuation date for marital assets is the date of the filing for the petition for dissolution, and no, it doesn't matter who files. I would strongly suggest that your sister speak with an experienced family law attorney who practices in the area where your sister resides prior to taking any action. If the existing or potential case is in or near the Central Florida area (Orange, Seminole, Volusia, Lake, Sumter, Marion, and nearby counties), I would be more than happy to speak with her (or you). My office offers free initial telephone consultations, during which we can discuss your sister's matter in more detail, as well as explore the potential rights and options available.
    Answer Applies to: Florida
    Replied: 8/2/2011
    Michael D. Fluke, P.A.
    Michael D. Fluke, P.A. | Michael D. Fluke
    There is no time period required to share in marital assets. A marital asset is an asset that was acquired from the time of marriage to the time of filing for divorce, unless there is a prenuptial, post nuptial or settlement agreement. The marital portion of a 401K can be divided at any time. I think this 10 years is being confused with the requirement of 10 years of marriage during active duty to get division of a military pension through DFAS.
    Answer Applies to: Florida
    Replied: 8/2/2011
    Law Office of Richard B. Kell
    Law Office of Richard B. Kell | Richard B. Kell
    There is no specific time marker for when a spouse becomes eligible for alimony. Length of marriage is only one of the factors that courts look at when deciding the issue of alimony. I've seen cases where the spouse seeking alimony was married for over 25 years and the court denied alimony, despite one spouse's stated need for it. Even in long-term marriages, the primary factors will be (1) one spouses need for alimony and (2) the other spouses ability to pay. If BOTH are great, then it will be in the cards. However, the court isn't just going to hand it out - it must be fought for.
    Answer Applies to: Massachusetts
    Replied: 8/2/2011
    The Coyle Law Office
    The Coyle Law Office | T. Andrew Coyle
    In Illinois there is no cut-off timeline like that you discuss. Generally speaking, assets acquired during the marriage are presumed to be marital property and thus half-owned by each spouse. So, if the asset started during the marriage, then of the value would likely be given to each spouse. If the asset was owned by one party prior to the marriage, but gained value during the marriage that gain in value would be split equally between each spouse. These statements, though, do not take into account several other variables that may apply to your situation. You should discuss this with a local attorney who can give you a better picture and can take more facts.
    Answer Applies to: Illinois
    Replied: 8/2/2011
    Reeves Law Firm, P.C.
    Reeves Law Firm, P.C. | Roy L. Reeves
    There is not a time limit in Texas. The 10 year rule applies (I think) in North Carolina and since that is a large Military state, the 10 year rule gets carried out and promulgated elsewhere. In Texas, we are community property (there are 8 CP states) and in a CP state the property is characterized as separate (not subject to division) or community (assumed owned 50/50) and it does not matter how long you are married.
    Answer Applies to: Texas
    Replied: 8/1/2011
    Seattle Divorce Services
    Seattle Divorce Services | Michael V. Fancher
    Under Washington law all assets are subject to division, no matter how long the marriage was. Generally the court will award each party their separate assets (owned prior to the marriage or acquired by gift or inheritance), and divide the community assets, acquired during the marriage, not by gift or inheritance). For a 401K, the portion of it earned during the marriage is treated as community. The only 10 year qualification I have ever heard of has to do with qualifying for certain benefits as a spouse of a person in the military.
    Answer Applies to: Washington
    Replied: 8/1/2011
    Vincent J. Bernabei LLC
    Vincent J. Bernabei LLC | Vincent J. Bernabei
    There is no minimum length of marriage before assets are divided. All assets acquired during the marriage will be split evenly in most cases. If the asset was owned by one spouse before the marriage, then the appreciation in value of the asset from date of marriage to date of final divorce (or settlement) will usually be divided equally.
    Answer Applies to: Oregon
    Replied: 8/1/2011
    Lewis, Pfanstiel & Williams, PCLO
    Lewis, Pfanstiel & Williams, PCLO | Ryan J. Lewis
    Nebraska is a marital property state, which means ALL property and or debt that was acquired during the marriage gets divided equally.
    Answer Applies to: Nebraska
    Replied: 8/1/2011
    ROWE LAW FIRM
    ROWE LAW FIRM | Jeffrey S. Wittenbrink
    In Louisiana, property resulting from the effort or industry of a spouse during the marriage is "community property," and the parties each own the property together. As long as the parties have not signed a prenuptial or post-nuptial agreement, keeping their property separate, they will share in the proceeds of what each has earned during the marriage, and it starts from the moment of marriage. This would include, for example, items purchased, such as cars, furniture, movables, and items invested, such as when wages are put into a savings or investment account. The community or shared property situation will end when one party files for divorce, as long as the parties end up getting divorced based on that filing. With regard to a 401(k), the contributions and interest earned during the marriage is owned by both of the parties. This may also be affected if one party filed a "reservation" of "fruits" earned on his separate property-an act that could have been undertaken without disclosing it to the spouse until last year when the law was changed. If the owner of the 401(k) filed such a "reservation," then all interest earned on contributions he made prior to the marriage would continue to be his separate property. If he did not make any contributions to the 401(k) during the marriage, it would all be his separate property. There are many complicated questions surrounding the division of marital property in Louisiana, and you should consult an attorney about your personal situation.
    Answer Applies to: Louisiana
    Replied: 8/1/2011
    John E. Kirchner, Attorney at Law
    John E. Kirchner, Attorney at Law | John Kirchner
    There is NO time deadline for the equitable distribution of marital property in a divorce. All property now held by either party (regardless of name on the title) is presumed to be marital unless it is proven to have been owned prior to marriage or acquired by gift or inheritance. All marital property will divided fairly, but there are no fixed and simplistic rules to decide what is fair. The judicial system expects the parties to try and reach an agreement that the court can simply approve, but if an agreement is not possible the court will decide after consideration of all the facts and circumstances, including the type of property. The "fair" result requirement applies to the overall distribution - not to each separate asset.
    Answer Applies to: Colorado
    Replied: 8/1/2011
    Law Office Of Jody A. Miller
    Law Office Of Jody A. Miller | Jody A. Miller
    There are no "time requirements" for equitable division of assets in Georgia. There are a couple of exceptions, such as social security benefits and military retirement, but in general there are no time requirements. Your sister needs to have an in person consultation with an experienced family law attorney in order to discuss the details of her case and the law in general that might apply.
    Answer Applies to: Georgia
    Replied: 8/1/2011
    Cody and Gonillo, LLP
    Cody and Gonillo, LLP | Christine Gonilla
    You may be thinking about Social Security; that is the only benefit that has a 10 year time period attached to it according to federal law: A divorce is brought under state law and equitable distribution based on many factors is the criteria applied to retirement assets such as 401k's.
    Answer Applies to: Connecticut
    Replied: 8/1/2011
    Willick Law Group
    Willick Law Group | Marshal S. Willick
    I think that, largely, you have been mis-informed. In Nevada, ALL property accrued during a marriage is normally community property; the other matters you mention should be irrelevant.
    Answer Applies to: Nevada
    Replied: 8/1/2011
    Law Office of James Lentz
    Law Office of James Lentz | James Lentz
    In Ohio, the only issue that is time based is the option of spousal support. Please see an attorney for more information.
    Answer Applies to: Ohio
    Replied: 8/1/2011
    Elmbrook Law Offices
    Elmbrook Law Offices | Gregory Straub
    All marital assets are eligible to be negotiated and split regardless of how long the couple has been married. There is a commonly held belief that ten years will be the potential timeline for a "long" marriage in which maintenance may be factored in. However, the 401k assets are part of the marital estate and will be divisible.
    Answer Applies to: Wisconsin
    Replied: 8/1/2011
    Arnold & Wadsworth
    Arnold & Wadsworth | Brian Arnold
    She is entitled to half of the retirement that was built up during the marriage no matter the length.
    Answer Applies to: Utah
    Replied: 8/1/2011
    Law Office of Robert L. Fiedler
    Law Office of Robert L. Fiedler | Robert L Fiedler
    Other than certain military benefits and social security benefits, I am not aware of any 10 year rule. Truth is, once married, any asset that exists (although much more difficult to get for premarital assets) becomes fair game.
    Answer Applies to: Connecticut
    Replied: 8/1/2011
    Donaldson Stewart, PC
    Donaldson Stewart, PC | Monica H. Donaldson Stewart
    The division of assets does not depend on the length of the marriage. The right to claim benefits from a spouse's social security does have a time period, but that is determined by the Social Security Administration, and has nothing to do with the divorce court.
    Answer Applies to: Arizona
    Replied: 8/1/2011
    Wallin & Klarich: A Law Corporation
    Wallin & Klarich: A Law Corporation | Paul Wallin
    Your sister is entitled to 50% of his 401k, etc. from the date of marriage to the date of legal separation. There is no "time requirement" at all.
    Answer Applies to: California
    Replied: 8/1/2011
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