QUESTION
Will a spouse of 10 years be entitled to a portion of husband's 401K?
Asked on Dec 02nd, 2012 on Divorce - California
More details to this question:
I am over 66 years old and my husband is still employed. No divorce has been filed as of yet. I receive social security and work a part-time job. He is threatening to file for a divorce but does not want me to have any of his 401K and/or retirement.
15 ANSWERS
Medical Malpractice Attorney serving Clermont, FL
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Joanna Mitchell & Associates, P.A.
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Any portion that was acquired during the marriage may be subject to division between the parties. You should consult with an attorney.
Answered on Dec 05th, 2012 at 11:35 PM
Cohabitation Agreements Attorney serving Cincinnati, OH
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Cathy R. Cook, Attorney at Law
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Yes, you are entitled to one-half of the portion of any retirement earned during the marriage.
Answered on Dec 05th, 2012 at 9:05 PM
Family Law Attorney serving Walnut Creek, CA
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Law Office of Jon Rathjen
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You are entitled to one half the community property; that includes retirement benefits earned during the marriage.
Answered on Dec 04th, 2012 at 12:27 PM
Yes. Even if you were married to 24 hours, you may be entitled to a portion of his 401k
Answered on Dec 04th, 2012 at 12:26 PM
Steven D. Dunnings
Yes
Answered on Dec 03rd, 2012 at 6:18 PM
A spouse is entitled to one-half of everything acquired during the term of the marriage so long as the acquisition wasn't received by inheritance or gift. So. In your case, yes. One-half of that portion of the 401k which was acquired during your marriage is community property and subject to equal division.
Answered on Dec 03rd, 2012 at 6:18 PM
You would be entitled to one half of the value of the retirement accumulated during your marriage. You should consult a family law attorney to review all of the facts and figures and advise you.
Answered on Dec 03rd, 2012 at 6:18 PM
Probate Law Attorney serving Colorado Springs, CO
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John E. Kirchner
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In a divorce in Colorado and most states you will be entitled to have that portion of the 401k that accumulated during the marriage handled as marital property. All marital property is to be divided fairly. Fairly means whatever you and your husband agree is fair OR if you can't agree what a judge considers fair. There are no simple, fixed rules and the question of fairness involves examining the overall financial settlement - not each item of marital property. As long as the overall determination results in something close to 50/50 of the total, a judge will probably consider that to be fair. The length of the marriage is only relevant to the question of how much of the account was contributed during the marriage.
Answered on Dec 03rd, 2012 at 6:17 PM
If you file for Dissolution of marriage, you would be entitled to your community property share of his 401(k). That means your are entitled to one half of the value of the account from the Date of marriage to the Date of Separation plus any interest thereon or diminution of its value.
Answered on Dec 03rd, 2012 at 6:17 PM
1 Award
Yes, you would certainly be entitled to a portion of his 401K Plan and retirement unless you signed a pre-nup agreement.
Answered on Dec 03rd, 2012 at 6:16 PM
Family Law Attorney serving West Bloomfield, MI
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Law Offices of Eugene Lumberg and Eric S. Lumberg
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Yes. In Michigan, you would have a claim to the marital portion of the fund. While it could be 50%, there are other factors that need to be considered. Consult with an attorney to discuss this issue and other property division matters further.
Answered on Dec 03rd, 2012 at 6:16 PM
The part of your husband's 401(k) which was acquired during the marriage is marital property subject to being equitably divided by the court in a divorce. For example, if your husband had contributed to the 401(k) for 30 years, but had only been married 10 of those 30 years, one-third of the 401(k) would be considered marital property, and two-thirds would be considered your husband's separate property.
Answered on Dec 03rd, 2012 at 6:15 PM
Assuming the 401 K was not owned prior to marriage, it should be community property and subject to division in the divorce.
Answered on Dec 03rd, 2012 at 6:15 PM
Divorce/Family Law Attorney serving Carlsbad, CA
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Anne B. Howard, A Professional Law Corporation
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You are entitled to half the 401k that was earned during marriage. Get an attorney to help you .
Answered on Dec 03rd, 2012 at 6:14 PM
If any part of the 401k was accumulated during the marriage, then that portion is presumed to be community property and therefore subject to division in a divorce. Any part of the 401k that was accumulated prior to the marriage is presumed to be separate property, not subject to division. He may be willing to offer you something else in exchange for your share of his 401k/retirement, but if it is a community property asset, he can't just "refuse" to share it.
Answered on Dec 03rd, 2012 at 6:14 PM