Is this appreciation marital property? 27 Answers as of July 09, 2013

In a divorce my husbands 401k appreciated 10% but he never contributed into it. Is this appreciation marital property then?

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Warner Center Law Offices of Donald F. Conviser
Warner Center Law Offices of Donald F. Conviser | Donald F. Conviser
No. I assume that the appreciation on your husband's premarital 401K contributionswas due to market forces as opposed to your husband's active trading of the 401K securities during the marriage. If your husband grew his 401K account by active trading during the marriage, it is possible that the Court could find the appreciation to be due to community efforts, and award the appreciation to the marital community (of which 1/2 would be yours).
Answer Applies to: California
Replied: 9/19/2011
The Law Office of Cathy R. Cook
The Law Office of Cathy R. Cook | Cathy R. Cook
No, passive appreciation on non-marital money is non-marital.
Answer Applies to: Ohio
Replied: 9/19/2011
Theodore W. Robinson, P.C.
Theodore W. Robinson, P.C. | Theodore W. Robinson
Hello, Yes, that's exactly what appreciation is! If hedid not contribute to it, he went without a pay increase or something like that and the company put the money into his 401K instead and then invested it so it made money. Same as an investment account. Speak to a matrimonial lawyer. Good luck.
Answer Applies to: New York
Replied: 9/19/2011
The Law Offices of Robert W. Bellamy
The Law Offices of Robert W. Bellamy | Robert W. Bellamy
Alabama is a common law state. Courts will divide a couple's assets in an 'equitable' (fair) manner. Equitable doesn't necessarily mean 'equal,' but what's fair to both spouses.In deciding what's "equitable," a court will commonly take into account:The length of the marriageThe work history and job prospects of each spouseThe physical and mental health of each spouseThe source of particular assetsExpenses of the childrenTaking A Property InventoryYour assets are subject to equitable distribution during a divorce settlement. This means that 401(k) assets accumulated during your marriage probably, but not necessarily, will be divided 50-50. Other factors, such as the division of the rest of your marital assets, the length of your marriage, or what each of you contributed to the marriage will also play a part in the decision. What accumulated during your marriage would be subject to division.
Answer Applies to: Alabama
Replied: 9/16/2011
The Law Office of Erin Farley
The Law Office of Erin Farley | Erin Farley
Appreciation of separate property remains separate property.
Answer Applies to: California
Replied: 6/23/2013
    Cody and Gonillo, LLP
    Cody and Gonillo, LLP | Christine Gonilla
    If it accrued during the marriage it will ordinarily be subject to equitable division.
    Answer Applies to: Connecticut
    Replied: 9/16/2011
    Beaulier Law Office
    Beaulier Law Office | Maury Beaulier
    That would be a form of passive appreciation if the account was not manipulated during the marriage by switching the investments in the account. Active appreciation occurs when gains are realized through some effort, such as studying the market and transferring investments.
    Answer Applies to: Minnesota
    Replied: 9/16/2011
    Law Office of Cassandra Savoy
    Law Office of Cassandra Savoy | Cassandra Savoy
    The valuation date is the date of the filing of the complaint. If you file on January 1, 2011 and the 401K is valued at $10,000. and the divorce does not occur until February 2012, you are entitled to some portion of the $10,000 pls the interest earned on that portion of the $10,000.
    Answer Applies to: New Jersey
    Replied: 9/16/2011
    Law Offices of Paul A. Eads, A.P.C.
    Law Offices of Paul A. Eads, A.P.C. | Paul A. Eads
    Nope. Separate property appreciating in value does not become community property merely because it appreciated in value during the marriage.
    Answer Applies to: California
    Replied: 9/16/2011
    Elizabeth Jones, A Professional Corporation
    Elizabeth Jones, A Professional Corporation | Elizabeth Jones
    If the appreciation is on money contributed before separation then it is community property.
    Answer Applies to: California
    Replied: 9/16/2011
    Law Office of Patricia Van Haren
    Law Office of Patricia Van Haren | Patricia Van Haren
    If there were no contributions made during the marriage, then the community would not have an interest in the 401K.
    Answer Applies to: California
    Replied: 9/16/2011
    Law Office of Michael E. Hendrickson
    Law Office of Michael E. Hendrickson | Michael E. Hendrickson
    If the 401K is classified as marital property, so would any increases in its amounts irrespective of their sources.
    Answer Applies to: Virginia
    Replied: 9/16/2011
    Willick Law Group
    Willick Law Group | Marshal S. Willick
    If I understand your facts correctly, the answer is "no." The "rents, profits and issues" of community property are community, and of separate property are separate. If all contributions were separate property so is the accumulating interest and dividends.
    Answer Applies to: Nevada
    Replied: 9/16/2011
    The Davies Law Firm, P.A.
    The Davies Law Firm, P.A. | Robert F. Davies, Esq.
    If you are asking this question, then you either do not have a good divorce attorney, or you have no divorce attorney. You need a divorce attorney. The answer to your question is: yes. Now get a good lawyer working for you. I can help you with this. Give me a call, make an appointment to come see me, and let's get moving on this for you. No charge for the telephone call and no charge for the first office visit.
    Answer Applies to: New Jersey
    Replied: 9/16/2011
    John E. Kirchner, Attorney at Law
    John E. Kirchner, Attorney at Law | John Kirchner
    Appreciation in a divorce setting refers to any increase in the value of an asset between the time of marriage and the time of divorce. It is only relevant when the asset already existed before the marriage or came into existence during the marriage by means of inheritance. Contributions to a 401k are not "appreciation" in that sense, but obviously will add to the possible increase in value. Depending on how the 401k is invested, however, there can be appreciation in value without additional contributions.
    Answer Applies to: Colorado
    Replied: 10/3/2011
    ROWE LAW FIRM
    ROWE LAW FIRM | Jeffrey S. Wittenbrink
    In Louisiana, interest and appreciation are generally considered "fruits" of property which is considered community or marital property in a partition of property after divorce.
    Answer Applies to: Louisiana
    Replied: 9/16/2011
    Goolsby Law Office
    Goolsby Law Office | Richard Goolsby
    We recommend you consult with a divorce lawyer about this and any other matters, but, generally, we might make such an argument. Good luck.
    Answer Applies to: Georgia
    Replied: 9/16/2011
    Ashman Law Office
    Ashman Law Office | Glen Edward Ashman
    Appreciation during a marriage is marital property.
    Answer Applies to: Georgia
    Replied: 9/16/2011
    Arnold & Wadsworth
    Arnold & Wadsworth | Brian Arnold
    Any retirement built up during the marriage is subject to distribution in a Divorce in Utah.
    Answer Applies to: Utah
    Replied: 9/16/2011
    Vincent J. Bernabei LLC
    Vincent J. Bernabei LLC | Vincent J. Bernabei
    That is passive appreciation, and is considered marital property.
    Answer Applies to: Oregon
    Replied: 9/16/2011
    Law Office of Michael W. Bugni
    Law Office of Michael W. Bugni | Jay W. Neff
    The rule is that the rents, issues, and profits of community property are themselves community property. This means that if the 401K is community property, that any increase in value is also community property. Also, to the extent that the 401K is separate property, then, any increase in value is also separate property.
    Answer Applies to: Washington
    Replied: 9/16/2011
    Glenn E. Tanner
    Glenn E. Tanner | Glenn E. Tanner
    If the principal was community, the earnings on the principal are community.If the principal was separate, the earnings are separate.
    Answer Applies to: Washington
    Replied: 9/16/2011
    Correia-Champa & Mailhot
    Correia-Champa & Mailhot | Susan Correia Champa
    If you were married during the time that it appreciated then yes it is.
    Answer Applies to: Massachusetts
    Replied: 7/9/2013
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