Am I entitled to my husband's 401K in a divorce if he started investing in it before we got married?

Question

My husband wants to get a divorce after 3 years.  We have been together for 5 years.  He has two children from a previous marriage in which I've cared for for the last 5 years.  Am I entitled to his 401k if he started investing in it prior to our marriage?

Jessica Cotter · Answer

Arizona is a community property state.  What this means is that you would be entitled to a one half interest in the community property portion of his 401(K).  The portion earned, or contributed to prior to the marriage would be his separate property, even if you were living together when it was earned and contributed.

Ellen Smith · Answer

In Idaho, all income earned during the course of a marriage is "community" income.  In other words, such income belongs equally to both persons in the marriage.  So, even though your husband began investing in his 401K prior to marriage, you would generally be entitled to 50% of the portion of the 401K earned after you both were married.  The part of the 401K that your husband earned prior to your marriage would be considered his separate property.

Frances Headley · Answer

You would be entitled to half of the portion invested during the marriage. You should consult a family law attorney to review all of the facts and advise you.

John Danelon · Answer

You are entitled to your half of the portion of the 401k which was  earned during the marriage. You are not entitled to half of the entire  401k because part of it was earned prior to marriage, thus would be his  separate property.

Diane Berger · Answer

You are entitled to a portion of the 401I(k) that was acquired while you were married. What he had before you got married, will be his premarital property and will go to him.

Mathew Kobliska · Answer

Generally, yes.  The court may enter a Qualified Domestic Relations Order (QDRO) to carve out your share of the marital portion of the retirement asset.  This is called the coverture fraction.  It has little to do with when he started it, but more importantly, how much was accumulated during the time of the marriage.  None of this will happen automatically.  You need to advocate your rights as to this important asset.

John Brennan · Answer

Usually one half of the contributions and earnings during the actual marriage.

Terry Buchanan · Answer

You are only entitled to one-half of the community property interest in the 401(k) account.? The community property interest is the amount entered into that account from date of marriage to date of separation. The balance of the account is your Husband's separate property.

Elizabeth Jones · Answer

You may have a community property share of the contributions made from the date of marriage to the date of separation.

David Goldberg · Answer

You may be entitled to an undetermined portion of his 401k for the time he contributed to it during the marriage.

Julie Ringquist · Answer

You will probably be entitled to one-half of the amount that was earned during the marriage, not any part that was earned before the marriage date.  Because both parts have continued to grow during the marriage, it takes an expert in this area to determine exactly how much is from his pre-marital days and how much was earned during the marriage.

Christopher Dull · Answer

Yes, you are entitled to a proportion of his contributions from the time you were married to him until the time you separated.

Find a Lawyer

Ask a Lawyer

Read Legal Articles

Ask a Lawyer

Read Legal Articles

Am I entitled to my husband's 401K in a divorce if he started investing in it before we got married?

12 ANSWERS

Find Local Divorce Lawyers

Helpful Resources

Ask a Lawyer