QUESTION
Will I have to share my 401K if I filed for divorce?
Asked on May 22nd, 2013 on Divorce - Michigan
More details to this question:
Good morning, I have a 401K that I had before we got married, and my husband had a 401K also. He lost his job and has withdrawn his money with penalties, but I never received any money nor did I sign anything either. I know he spent his money within 2 months. He has started a new job, but part-time, no benefits or 401K, will I have to share my 401K once I file for divorce? We got married on 09/01/2007. We don't share kids together, and I had my house built 4 months after I met him. Thank you so kindly for your time.
8 ANSWERS
Family Law Attorney serving Peoria, AZ
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The Law Firm of Jessica M. Cotter, P.L.L.C.
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If you were contributing to this 401(K) prior to your marriage, and ended your employment with that employer prior to your marriage, then it would be separate property. If you contributed to the 401(K) after your marriage then there may be a community interest to a portion of it. You should consult with experienced family law counsel to discuss these issues.
Answered on May 24th, 2013 at 11:03 AM
Family Law Attorney serving West Bloomfield, MI
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Law Offices of Eugene Lumberg and Eric S. Lumberg
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Your spouse could claim a portion of the increased value during the marriage. Consult with an attorney to discuss this issue further.
Answered on May 24th, 2013 at 11:02 AM
Business Law Attorney serving Bingham Farms, MI
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James T. Weiner, P.C.
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Generally if it was your property before you married it is not marital property so at least the greatest portion of it should not be subject to his claims. (nor should your house for that matter). Get a good divorce attorney to represent you
Answered on May 24th, 2013 at 11:02 AM
It depends upon how much you may have contributed to your plan during the marriage. His withdrawal of his plan without using it for community benefit may assist you. You should consult a family law attorney to review all of the facts and advise you.
Answered on May 24th, 2013 at 1:38 AM
Commercial Contracts Attorney serving Boise, ID
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Peters Law, PLLC
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Generally, 401ks are community property. If your 401k started in 1993 and you married in 2007 and get divorced in 2013, he would be entitled to ? of 6/20s of your 401k.
Answered on May 24th, 2013 at 1:38 AM
Dispute Resolution Attorney serving Seattle, WA
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Law Offices of Helene Ellenbogen P.S.
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If none of the 401(k) was earned during the marriage, it is separate property which the court must first characterize and then can consider if necessary to achieve a fair division. Likely in a short term marriage like yours, the court would not give him any part of it. However, any part of the 401(k) that was earned during the marriage is community property and will be divided. I don't know what you mean by "my house was build 4 months after I met him." Did the two of you live in the house during the marriage and pay the mortgage with earning from the marriage (anything either of you earned during the marriage). If so, he has an equitable interest in the house. If you had it built prior to the marriage and paid for it in full prior to the marriage or with funds you had from before the marriage, then he can not claim any interest in the house, unless he contributed funds for any improvements, etc.
Answered on May 24th, 2013 at 1:36 AM
Appellate Attorney serving Grosse Pointe Farms, MI
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Musilli Brennan Associates, PLLC
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You'll have seen attorney regarding many of your questions. Your 401(k) which accumulated prior to your marriage will probably not be a marital asset, however the accumulation and earnings during the marriage will be.
Answered on May 24th, 2013 at 1:36 AM