My husband and I both want a divorce but he doesn’t want to include the 401k, am I entitled? 25 Answers as of July 17, 2013

I got married in 1996 and stayed with my husband to 2002. We separated and lived separate lives until now 2013.

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Pingelton Law Firm | Dan Pingelton
Yes you are.
Answer Applies to: Missouri
Replied: 1/15/2013
John Russo | John Russo
You are still married, so the marital portion of the 401 is a marital asset, i.e. 1996 thru 2013.
Answer Applies to: Rhode Island
Replied: 1/14/2013
The Law Office of Cathy R. Cook
The Law Office of Cathy R. Cook | Cathy R. Cook
You are entitled to one-half of the 401k for the "duration of the marriage". If you financially separated in 2002, that would be from 1996-2002.
Answer Applies to: Ohio
Replied: 1/12/2013
Law Office of Annette M. Cox, PLLC
Law Office of Annette M. Cox, PLLC | Annette M. Cox
You are entitled to a portion of the 401k that was accrued during the marriage and the increase in value of those particular portions. A qualified domestic relations order is often prepared to divide out your interest. I would suggest consulting an attorney to discuss what you are entitled to, the costs and benefits of pursuing the retirement and the process.
Answer Applies to: Arizona
Replied: 1/11/2013
Law Office of Eric S. Lumberg | Eric S. Lumberg
The portion of the account earned during the marriage is part of the divorce process.
Answer Applies to: Michigan
Replied: 1/11/2013
    Victor Varga | Victor Varga
    Yes.
    Answer Applies to: Maryland
    Replied: 5/28/2013
    Law Office of Beth Jackson Day | Beth Jackson Day
    from '96 to 2013 you have a share in the pension.
    Answer Applies to: Maryland
    Replied: 1/11/2013
    Law Offices of John F. Nicholson
    Law Offices of John F. Nicholson | John F. Nicholson
    Unless there is an agreement to the contrary, you are entitled to 50% of the money added to his 401k from the date of marriage to the date of separation, and the interest accrued to that amount.
    Answer Applies to: California
    Replied: 1/11/2013
    Musilli Brennan Associates PLLC
    Musilli Brennan Associates PLLC | John F Brennan
    I would suggest some compromise would be in order, a splitting of the funds accumulated during the time you were together, plus the gains on those funds, comes to mind. See an experienced attorney who can help you settle and get this done.
    Answer Applies to: Michigan
    Replied: 1/11/2013
    Oscar E. Toscano | Oscar E. Toscano
    The period from 1996 to 2002 is community property. The rest is his. You are entitled to a proportionate share only
    Answer Applies to: California
    Replied: 1/11/2013
    Law Offices of Julie A. Ringquist | Julie A. Ringquist
    You are entitled to one half of any amounts (and the growth on those amounts) which were accumulated during the marriage. Unless you have a similar asset that was earned during the marriage and you each agree to just take what is your own (rather than each divide the two similar assets), then you should be getting the half of the 401k earned during the marriage.
    Answer Applies to: California
    Replied: 1/11/2013
    LAW OFFICE OF ANNE B. HOWARD | Anne B. Howard
    You should be entitled to half 401k earned during marriage. He has to include it. Since date of separation his contributions are his.
    Answer Applies to: California
    Replied: 1/11/2013
    Kram & Wooster, P.S. | Richard H. Wooster
    You are entitled to the portion earned while together and the interest earned. Sounds like you should hire my partner.
    Answer Applies to: Washington
    Replied: 7/17/2013
    Zales Law Office
    Zales Law Office | Nicholas C Zales
    There has to be a 50-50 or close to it division of property including the 401K. He can keep it if he gives you something else of equal value. Otherwise, he may not be able to keep it. You own half of everything you two have, including the 401K. Be sure and get yourself a lawyer. A few thousand spent today?could be worth?tens of thousands tomorrow.?
    Answer Applies to: Wisconsin
    Replied: 1/11/2013
    David A. Browde, P.C.
    David A. Browde, P.C. | David Browde
    That's not enough information - when was the 401k acquired?
    Answer Applies to: New York
    Replied: 7/17/2013
    Diefer Law Group, P.C.
    Diefer Law Group, P.C. | Abel Fernandez
    You would be entitled to a portion of his 401(k) from the time you got married to the time of separation.
    Answer Applies to: California
    Replied: 1/11/2013
    Tebano & Associates, PLLC
    Tebano & Associates, PLLC | Maria C. Tebano
    You are entitled to your marital share of his 401k despite what he wants.
    Answer Applies to: New York
    Replied: 1/11/2013
    Woolley Wilson, LLP
    Woolley Wilson, LLP | William R. Wilson
    Yes- assuming it was accumulated during the marriage
    Answer Applies to: Texas
    Replied: 1/11/2013
    Coulter's Law
    Coulter's Law | Coulter K. Richardson
    You are entitled to the capital appreciation of his 401K for the duration of your marriage up to separation. So if his 401K was worth 50K when you married him, and 100K when you separated, you would be entitled to half of 50K or 25k.
    Answer Applies to: New Jersey
    Replied: 1/11/2013
    Law Offices of Frances Headley | Frances Headley
    The 401k must be included unless it was not established until after your separation in 2002.
    Answer Applies to: California
    Replied: 1/11/2013
    Law Office of Lynda H. LeBlanc
    Law Office of Lynda H. LeBlanc | Lynda Leblanc
    The court assumes a 50/50 split of all assets and debts is equitable. The portion of the 401(k) earned during the marriage is part of the marital estate and is up for grabs.
    Answer Applies to: Indiana
    Replied: 1/11/2013
    Peters Law, PLLC
    Peters Law, PLLC | Mark T. Peters, Sr.
    You are entitled to one-half of the 401(k) for the period of time you are married. So you get married in 1996 when he starts his new job and divorce in 2013. You would be entitled to ? through 2013. If he started working 1983, you would be entitled to (17/30) times the amount in the 401(k). He may be able to make an argument that your community property rights stopped accruing in 2002, but that would take a substantial amount of research for which you should really pay an attorney for the answer.
    Answer Applies to: Idaho
    Replied: 1/11/2013
    Danville Law Group | Scott Jordan
    If your husband contributed to his 401K from the 1996 to 2002, you would be entitled to a portion of the amount contributed during that time period.
    Answer Applies to: California
    Replied: 1/11/2013
    Diana K. Zilko, Attorney at Law
    Diana K. Zilko, Attorney at Law | Diana K. Zilko
    All assets and debts from between the date of marriage and date of separation need to be included (disclosed). However, you can agree to divide those items however you wish. Sometimes one party will keep their 401k in full, in exchange for the other party getting some other items of value.
    Answer Applies to: California
    Replied: 1/11/2013
    Elizabeth Jones, A Professional Corporation
    Elizabeth Jones, A Professional Corporation | Elizabeth Jones
    You are entitled to your community property share from the date or marriage to the date of separation.
    Answer Applies to: California
    Replied: 1/11/2013
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