How can I protect my 401K during a divorce? Also would it still be protected if I roll it over to an IRA?

Question

Janis Blough · Answer

If your 401k was accumulated during the marriage, it is divisible in divorce by means of a Qualified Domestic Relations Order, unless you offset it against another asset which you give to your spouse. Your spouse is entitled to half of that portion of your 401k that was accumulated during the marriage. That means if you earned a third of it before you married and two-thirds afterward, your spouse will get half of two thirds, or one-third which s/he can begin drawing at your earliest retirement date. An experienced attorney would be very helpful to you under these circumstances.

Cathy Cook · Answer

I don't know what you mean by protecting it.  A 401k earned during marriage is a marital asset, and your spouse is generally entitled to one-half of it. The spouse's share is generally rolled by them into their own IRA.

Steven Alpers · Answer

If it was earned during marriage, it is community property.  You will have to divide the 401k or give your spouse an equal amount of property to make the division equal.

Richard S. Goodman · Answer

If any deferred retirement account is accrued during the marriage, it is marital property and subject to division. Putting it into an IRA is not going to put it beyond reach.

Leonard Schwartz · Answer

In NJ they are both subject to Equitable Distribution and must be considered as marital property for the period the parties were married. Protection only applies for any time the parties were not married.

Frances Headley · Answer

If the account is community changing it over to another type of account will not change its character, nor prevent it being divided during the dissolution.  The only way you could retain the account intact is if you have another asset which you could give to your spouse equal to the value of their half of the community interest in this account.

Steven D. Dunnings · Answer

Your spouse is entitled to a portion of it, depending on how long you have been married

Rhonda Ellifritz · Answer

I don't know what you mean by protect.  If you mean hide, you could lose the entire thing, rather than half.

William Nebeker · Answer

The best way to protect your 401k would be to have a pre-nuptual agreement that specifies that your 401k is separate property in the event of  a divorce.  If you don't have  a prenup,  there are a few things you can do to protect your 401(k) from being awarded to your soon-to-be former spouse. First, stop making voluntary contributions to your 401(k) as soon as you are legally permitted to do so. Consult with a family law attorney in your jurisdiction before taking any action, but stop contributing as soon as you are legally permitted under the divorce laws in your state. Divorce cases can drag on for years, and I many people become unhappy that contributions made long after their separation are still considered marital property.  Another way to preserve at least some of your 401(k) is to push to exclude the funds that were in the account before you were married. This depends a lot on circumstances and state law, but many people don't realize that it is possible to divide only the funds that were contributed during the marriage and leave the pre-marital portion to the spouse who earned it before the marriage. Maintain your 401(k) account records carefully so you can easily prove how much it was worth before you walked down the aisle. As with so many things in life, thinking ahead and being thorough can make all the difference in determining whether you keep your 401(k) after the divorce.  The process for protecting an IRA would be the same.

James Weiner · Answer

You cannot really. do not bother to try to hide it..   Generally your soon to be ex can claim 1/2 of the investments during the period of the marriage

Tina Fox · Answer

Depending on how long you have been married depends on whether or not your spouse is entitle to a portion of your 401k, and if so, by how much. If you try to hide the money from your spouse, this will not fair well with the judge. As a spouse, he/she is entitle to a portion (again, depending on the length of the marriage).

Christopher Benjamin · Answer

You cannot "protect" your 401K because it is marital property (or at least part of it) and is subject to equitable distribution.

Gregory Crain · Answer

You can't, it's marital property.

Glenn Tanner · Answer

Protected from what/whom? In Washington all assets are subject to division whether in a 401k, an IRA or stuffed under your mattress.

Eric Smith · Answer

In Texas, all assets start with the presumption they are community property and subject to fair division during a divorce. However, it is fairly straightforward to prove, if it was the case, that the majority of a retirement account was accrued as separate property prior to marriage. If most or all of the work that vested the retirement account occurred during the marriage, however, this is a community asset suject to division. Rolling the asset into an IRA would not offer any special protection, and doing so with the intent to hide an asset would be bad.

Aimee Carol Robbins · Answer

NO. Your investments  made during your marriage are considered marital   property.

William C. Gosnell · Answer

It's marital property. You must divide it with your spouse.

Barbara Peyton · Answer

Once a divorce is filed there are standard restraining orders which affect all property  including retirement benefits.  The 401k - to the extent it was acquired during marriage- will be divided in the divorce by means of a written document called a QDRO.  You can transfer your 401k from one account to another so long as it is from "trustee to trustee".  Your investment person can explain how to transfer that stuff safely for you.

Michael P. Hughes · Answer

In the state of Florida all "Marital Assets and Liabilities" are subject to equitable distribution during a divorce. This includes 401k's and other retirement plans/pension plans. A marital assets or liability is one that was accumulated or acquired during the marriage. However, in certain cases an asset may be considered both marital and non-marital or its characterization can change during the course of a marriage to become a marital asset if there is commingling of the funds to the point where tracing is unavailable or too difficult to determine the source of the funds. If your 401k has a portion which was placed into it prior to the marriage you may be able to argue that this portion is a non-marital asset and should not be subject to distribution. However, as stated above marital assets are subject to distribution.

Monica H. Donaldson Stewart · Answer

Assets acquired during the marriage (including retirement) are presumed to be community property, and will therefore be equitably divided in the divorce. This is true whether you keep it in 401k or roll it into an IRA.

Suzanne H. Lombardi · Answer

In Alaska your 401k would be considered marital property if it was earned during the marriage.  If you have filed for divorce there is an order that basically says that you cannot move your 401K into an IRA or any other changes to insurance, etc.  How much of your 401(k) is at issue will be a question for the court.  There are many factors that go into property distribution.

Rebecca Rainwater · Answer

Any part of the 401k that accrued during the marriage is community property. Protecting it is more about the length of the marriage and if the other side is claiming a community portion, you may be able to offset the amount with some other asset or a cash buyout. You should consult with an attorney.

Ruth Emily Vogel · Answer

It needs to be included in a global property settlement agreement.  You can work to exclude any separate property amount.  Rolling it over will not protect it.

Robert De Groot · Answer

The 401K is a marital asset subject to equitable distribution if it was acquired during the marriage. Same rule for an IRA.

John Brennan · Answer

401K's and IRA's are marital assets and subject to division in divorce proceedings.

John Kirchner · Answer

If the 401k account is considered marital property (i.e. some or all of it accrued during the marriage), there is nothing you can do to "protect it" from being considered in an over all property settlement and rolling it over to anything won't change that fact.

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How can I protect my 401K during a divorce? Also would it still be protected if I roll it over to an IRA?

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