Is my husband entitled to half of my 401k plan? 40 Answers as of June 26, 2013

If my husband and I get a divorce is he entitled to half of my 401k? We were previously married for 25 years and got a divorce for about 6 months then we got remarried and have been married for about 3 more years would this make a difference? First divorce he didnt want anything but now he saying he wants half of my 401k..

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Fox Law Firm LLC
Fox Law Firm LLC | Tina Fox
Yes it does make a difference. If he did not want it the first time he cannot remarry you and decide that he wants it this time. Once it is waived it is waived.
Answer Applies to: Illinois
Replied: 8/5/2011
Warner Center Law Offices of Donald F. Conviser
Warner Center Law Offices of Donald F. Conviser | Donald F. Conviser
Your husband is entitled to 1/2 of the community interest in your 401K plan. If you were a participant in that plan prior to your current marriage, the contributions into that plan prior to your current marriage (even if made during your prior marriage) are your separate property. Also, the contributions into that plan subsequent to your separation from your husband are your separate property.
Answer Applies to: California
Replied: 7/22/2011
Law Office of Daniel B. Rubanowitz, APC
Law Office of Daniel B. Rubanowitz, APC | Daniel B. Rubanowitz
Generally speaking, in California, a spouse is entitled to half of all property acquired during marriage, even a 401K Plan. If your 25 year marriage ended with a proper Judgment and if your husband waived his right to any interest in your 401K Plan at that time, then it seems that he would only have an interest in a portion of the Plan for half of the contributions (and a half interest in the profits or losses generated, if any) made during the second marriage. The existence of a pre/post marital agreement or other facts could result in a different outcome. On a related matter, please note that the income you generate from the plan, when you begin drawing from the plan, could be considered income available for support purposes. This is a potentially complex issue which you should discuss with a family law attorney.
Answer Applies to: California
Replied: 7/21/2011
Reeves Law Firm, P.C.
Reeves Law Firm, P.C. | Roy L. Reeves
Based on what you have said here the answer is no. You divorced after 25 years, and the property was divided. Any property you were left with after the first marriage is your separate property. The fact the two of you remarried does not change this fact. Think of it this way, if you remarried a different man, could he reasonably ask for 1/2 of your 401K that existed prior to marriage? The answer is a resounding no, so the same applies here. He is entitled to 1/2 of the 401K accrued during the 3 years of the second marriage, you have the duty to show it was separate coming into the marriage.
Answer Applies to: Texas
Replied: 7/20/2011
Law Office of Robert L. Fiedler
Law Office of Robert L. Fiedler | Robert L Fiedler
If I were your attorney, I would argue that he is at best entitled to half of what you have invested since you got remarried. I would argue that the prior share he forfeited when he didn't seek it in the first divorce.
Answer Applies to: Connecticut
Replied: 7/20/2011
    Law Office of Jackie Robert Geller
    Law Office of Jackie Robert Geller | Jackie Robert Geller
    He is entitled to 50% of the value of the plan that accrued during marriage. It's a bit complicated so speak to an experienced family law attorney asap.
    Answer Applies to: California
    Replied: 7/20/2011
    Dunnings Law Firm
    Dunnings Law Firm | Steven Dunnings
    What did the previous Judgement of divorce say about his entitlement to your retirement?
    Answer Applies to: Michigan
    Replied: 6/26/2013
    The Davies Law Firm, P.A.
    The Davies Law Firm, P.A. | Robert F. Davies, Esq.
    Lovely...just lovely. This is a complicated mess, and I would have to spend some time to research it. I would recommend that you fight his claim. I would want to look at the divorce settlement agreement from your first divorce.
    Answer Applies to: New Jersey
    Replied: 7/20/2011
    Law Office of Patricia Van Haren
    Law Office of Patricia Van Haren | Patricia Van Haren
    If your previous judgment divided the community property, including the 401K, your husband would only be entitled to of the value accumulated during your second marriage to him. You should take your previous divorce judgment to an attorney to review as it is impossible to determine what rights your husband may have without seeing the previous judgment.
    Answer Applies to: California
    Replied: 7/20/2011
    John E. Kirchner, Attorney at Law
    John E. Kirchner, Attorney at Law | John Kirchner
    All marital property must be fairly divided; most people view 50/50 as fair, but that is not an absolute rule. And, the fair division applies to the overall, total result - not to each item separately. At a minimum, the contributions to and appreciation in value of your 401k during your re-marriage will be considered marital property, but the characterization of the remaining value will depend in part how the first divorce settlement was handled. Your facts present a complicated situation that will require the assistance of an attorney to examine the original divorce settlement and all of the relevant facts before there can be a clearer answer about your 401k and all other assets are to be handled by a judge, if you and your husband cannot agree on what is fair.
    Answer Applies to: Colorado
    Replied: 7/20/2011
    Law Offices of Arlene D. Kock
    Law Offices of Arlene D. Kock | Arlene D. Kock
    If I understand your fact pattern, your husband waived any claim he had to your 401k existing at the time of your first divorce. If this is true, that asset would be your separate property at that time. Once you remarried, any new contributions of your earnings to the 401k would be community resulting in a portion of the 401k being community property. Net effect: most of the 401k could be your separate asset and 50% of the 401k earned in the second marriage would be your husbands. Do not overlook the fact this same rule applies to any 401k or retirement he may have earned in the second marriage.
    Answer Applies to: California
    Replied: 7/20/2011
    Law Office of James Lentz
    Law Office of James Lentz | James Lentz
    I think you are going to be in for an argument. My OPINION is that he would be entitled only to that portion of your 401(k) that received contributions during your second marriage. But I would expect a battle, depending upon the circumstance. Please see a domestic relations attorney for further planning strategies.
    Answer Applies to: Ohio
    Replied: 7/20/2011
    Law Office of Roianne H. Conner
    Law Office of Roianne H. Conner | Roianne Houlton Conner
    If he did not request the 401K in the first divorce, then a Court would probably not award him anything in the second divorce.
    Answer Applies to: Alabama
    Replied: 7/20/2011
    Pontrello Law
    Pontrello Law | William Pontrello
    Yes if earned during marriage.
    Answer Applies to: Florida
    Replied: 7/20/2011
    Joanna Mitchell & Associates, P.A.
    Joanna Mitchell & Associates, P.A. | Joanna Mitchell
    He would only be entitled to one half of whatever monies have been contributed to the 401k during the current marriage (the past 3 years). The prior one is irrelevant.
    Answer Applies to: Florida
    Replied: 7/20/2011
    Goolsby Law Office
    Goolsby Law Office | Richard Goolsby
    We recommend that you consult with and retain a divorce attorney in you area. An equitable property division would be based on all the facts and your fact scenario is incomplete. Again, seek a divorce lawyer ASAP! Good luck!
    Answer Applies to: Georgia
    Replied: 7/20/2011
    Law & Mediation Office of Jeffrey L. Pollock, Esq.
    Law & Mediation Office of Jeffrey L. Pollock, Esq. | Jeffrey Lawrence Pollock
    My initial answer if you had not been previously divorced is that, since PA is an Equitable Distribution state, then he would get whatever % of the entire marital estate would be equitable. If there were enough other assets to cover his "proper" %, then maybe your 401K would be safe. Since you were only married for 3 years this time, then his ability to claim a portion of that particular asset would now have to be addressed in light of your "shorter" marriage length in conjunction with all the other relevant
    Answer Applies to: Pennsylvania
    Replied: 7/20/2011
    Osterman Law LLC
    Osterman Law LLC | Mark D. Osterman
    The issue here is whether the prior judgment of the divorce successfully resolved all of the property issues at the termination of the first marriage. Under the circumstances, the judgment of the first divorce would preclude any claim for assets in the 2nd or subsequent divorce. The law seeks to set the parties at some form of equity and does not like to disturb early judgments. I took a chance to review some case law and believe that this would be a novel case in the appellate courts as no one has brought such an issue before. However, I am convinced it may never get to the appellate court because of a policy known as "res judicata." This means that the thing has already been decided. Given these limited set of circumstances and information, the marriage is the three-year married onlyand the Court will focus only on the 3 years of that marriage and not the prior judgment.
    Answer Applies to: Indiana
    Replied: 7/20/2011
    Meriwether & Tharp LLC
    Meriwether & Tharp LLC | Patrick Meriwether
    Whatever was accumulated during the marriage is subject to equitable distribution. Since you have only been married for three years, the portion of your 401k that you had before the remarriage is your pre-marital property.
    Answer Applies to: Georgia
    Replied: 7/20/2011
    Beaulier Law Office
    Beaulier Law Office | Maury Beaulier
    Your spouse would be entitled to his share of the marital assets. The marital assets are those that accrued during yoru most recent marriage. Any accumulation as part of a prior marriage was addressed in that divorce proceeding.
    Answer Applies to: Minnesota
    Replied: 7/20/2011
    Donaldson Stewart, PC
    Donaldson Stewart, PC | Monica H. Donaldson Stewart
    This depends on the way your first divorce orders were written. If you were awarded your 401k in the first divorce, then it became your sole and separate property. That would not change by getting remarried (it would only change if you dismissed the first divorce). This means that he may only be entitled to 1/2 of what you have accumulated during this "second" marriage.
    Answer Applies to: Arizona
    Replied: 7/20/2011
    Wallin & Klarich: A Law Corporation
    Wallin & Klarich: A Law Corporation | Paul Wallin
    You have an interesting case. Your spouse is entitled to one half of your 401k during the period of your marriage. However, if your husband in the first divorce agreed in writing to not have any of your 401k then he might only be entitled to the small portion your 401k appreciated since you remarried him. This is the kind of critical thing you need to discuss with an experienced family law lawyer.
    Answer Applies to: California
    Replied: 7/20/2011
    Michael Apicella
    Michael Apicella | Apicella Law and Mediation
    Given the facts you stated, husband is only entitled to the value of such community asset that accrued during the second marriage. It sounds like he lost his bite at the apple from the prior marriage at the 401k benefits that accrued during that first marriage. I.e., at time of first divorce, he waived his rights to that community asset.
    Answer Applies to: California
    Replied: 7/20/2011
    Horizons Law Group, LLC
    Horizons Law Group, LLC | Michelle B. Fitzgerald
    This is not your typical situation. You would want to speak to an attorney regarding your rights and what can be negotiated.
    Answer Applies to: Wisconsin
    Replied: 7/20/2011
    Law Office of Michael W. Bugni
    Law Office of Michael W. Bugni | Jay W. Neff
    There is no fixed formula for dividing property and debts in a divorce. All of the property is before the court: your separate property, his separate property, and the community property. The court's obligation is to make a fair and equitable division of that property after considering a number of factors. Some of those factors are: the age of the parties, the health of the parties, the duration of the marriage, each party's education, each party's work history, the nature and extent of separate and community property, and other factors. So, your spouse may be entitled to some of the 401k money or may be entitled to none of it. It will depend on a number of factors.
    Answer Applies to: Washington
    Replied: 7/20/2011
    Cody and Gonillo, LLP
    Cody and Gonillo, LLP | Christine Gonilla
    under current law you go by the current length of marriage.
    Answer Applies to: Connecticut
    Replied: 6/26/2013
    Willick Law Group
    Willick Law Group | Marshal S. Willick
    Oh, yes, it makes a difference. Under certain cases (the York case, for instance), in a "double divorce" situation only property accrued after the remarriage is before the court for distribution. Every case is different, however, and your best bet is a full consultation with qualified counsel.
    Answer Applies to: Nevada
    Replied: 7/20/2011
    Naomi Hirayasu Attorney at Law
    Naomi Hirayasu Attorney at Law | Naomi Hirayasu
    He waived any right to the pension at the time of the first divorce. During the second divorce, he should only be entitled to 1/2 of three years worth of the pension. Please contact me if you would like to discuss further.
    Answer Applies to: Hawaii
    Replied: 7/20/2011
    Glenn E. Tanner
    Glenn E. Tanner | Glenn E. Tanner
    Was the first divorce in Washington. Then that should be considered a fair and equitable division at that time andevrything prior to your second marriage your separate property. You need an attorney to artfully argue this and research this or the court may think it is looking at a 20 plus year marriage and not a short one.
    Answer Applies to: Washington
    Replied: 7/20/2011
    Neville J. Bedford Attorney at Law
    Neville J. Bedford Attorney at Law | Neville J. Bedford
    I think he should be entitled to 1/2 the amount accrued in the three years you were married as the last divorce divided the assets into separate property. His attorney may try to argue differently. The one who persuades the judge wins.
    Answer Applies to: Rhode Island
    Replied: 7/20/2011
    Law Office Of Jody A. Miller
    Law Office Of Jody A. Miller | Jody A. Miller
    Most likely, the only property that would be split is what was acquired during the second marriage, including the 401(k). So it is likely that only that portion of the 401(k) that was built up during the second 3-year marriage would be subject to equitable division.
    Answer Applies to: Georgia
    Replied: 7/20/2011
    Seattle Divorce Services
    Seattle Divorce Services | Michael V. Fancher
    Under Washington law, while all property is before the court to decide how it should be divided, as a general rule the court awards each party their separate property (acquired outside of the marriage) and divides the community property (the division is not necessarily in half). Since this marriage has only been for about three years, the community portion of the 401K would only be the part of the 401K that you acquired during that three year period. The portion that you had coming into the marriage should be treated as your separate property. In other words, he would likely only be awarded a small portion of the 401K (or some other offsetting asset).
    Answer Applies to: Washington
    Replied: 7/20/2011
    Petit & Dommershausen SC
    Petit & Dommershausen SC | Tajara Dommershausen
    Way too in depth of a question for this forum but likely he is entitled depending on first divorce papers.
    Answer Applies to: Wisconsin
    Replied: 7/20/2011
    Gulstrom, Henson & Petrie, PC
    Gulstrom, Henson & Petrie, PC | Tami Monek
    Based on the information you have given, your husband would only be entitled to one-half of the value of your 401(k) during your most recent marriage (i.e. for the last three years). He essentially forfeited his interest in the value of the 401(k) at the time of your first marriage.
    Answer Applies to: Idaho
    Replied: 7/20/2011
    Ashman Law Office
    Ashman Law Office | Glen Edward Ashman
    First of all, Georgia does NOT have community property, so 50-50 isn't how Georgia does it. Georgia does have equitable distribution, which means a judge will do what he thinks is fair. That certainly may mean some division. You need a lawyer for a complex case like this. Get one.
    Answer Applies to: Georgia
    Replied: 7/20/2011
    Noah A. Bradow, Attorney & Counselor, pllc
    Noah A. Bradow, Attorney & Counselor, pllc | Noah A. Bradow
    Generally, the portion of the 401k plan deposited and earned during the marriage will be considered marital property subject to division. This should have been addressed in the first divorce. Also, if the 401k continued to earn during the 3 year second marriage it may be subject to division. You may contact my office to arrange at consultation regarding your case.
    Answer Applies to: Michigan
    Replied: 7/20/2011
    Beresford Booth PLLC
    Beresford Booth PLLC | S. Scott Burkhalter
    I have seen this "issue" go both ways. Ultimately, the Court will make a fair and equitable division of assets and debts. The Court will consider both separate and community property. A major issue in your case is what was stated in the first divorce decree.
    Answer Applies to: Washington
    Replied: 7/20/2011
    Vincent J. Bernabei LLC
    Vincent J. Bernabei LLC | Vincent J. Bernabei
    He gets 50% of the 401(k) earned during your second marriage, not 50% of the entire plan.
    Answer Applies to: Oregon
    Replied: 7/20/2011
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