QUESTION
Am I entitled to my husbands 401K in the event of a divorce?
Asked on Jun 11th, 2011 on Divorce - Arizona
More details to this question:
My husband is filing for divorce and I was wondering if I am entitled to any of his 401k since he didn't accrue any until we were married. He has stated that he is not touching his 401k in this divorce, just wondering if this is being fair.
20 ANSWERS
Civil Attorney serving Spokane, WA
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Glenn E. Tanner, Attorney at Law
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You are entitled to a fair and equitable division of all assets and debts. If the 401k was in full or partially accumulated during the marriage, it is probably community property. Depending on what's fair and equitable, you can get some or all of the 401k regardless of who's name it is in. See an attorney. Good luck.
Answered on Jun 15th, 2011 at 7:30 AM
In Washington State the 401k you are describing would be community property and subject to equitable (whatever is fair) division by the court.
Answered on Jun 15th, 2011 at 7:14 AM
Medical Malpractice Attorney serving Clermont, FL
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Joanna Mitchell & Associates, P.A.
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If it was all acquired during the divorce, you are, in most instances, entitled to half. He doesn't have a choice about that, unless he wants to give you more of some other offsetting asset. My office offers free initial telephone consultations if you would like to discuss this matter in more detail, as well as explore the potential rights and options available. If you would like to coordinate a free initial telephone consultation, please contact my office.
Answered on Jun 15th, 2011 at 7:05 AM
If the 401k was incurred after the marriage then yes, you are entitled to a portion of it. How much depends on different factors. Contact the office today to discuss your case.
Answered on Jun 15th, 2011 at 7:05 AM
General Civil Trial Practice Attorney serving Beaverton, OR
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Vincent J. Bernabei, LLC
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To the extent the 401(k) was acquired during the marriage, it will be divided equally when you divorce. Be careful though, because you do not want to incur taxes and penalties for an early withdrawal, so the transfer of your share to you should be done through a Qualified Domestic Relations Order (QDRO).
Answered on Jun 15th, 2011 at 6:24 AM
Probate Law Attorney serving Colorado Springs, CO
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John E. Kirchner
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Funds in a 401k are no different than any other property. If they are acquired during the marriage they are considered marital property and all marital property is subject to a fair division between the parties. Whether you would receive all or any portion of the husband's 401k might depend on what other assets and debts there are to be divided. There are no simple rules and each case has to be evaluated on its own set of facts.
Answered on Jun 14th, 2011 at 3:56 PM
In Georgia, a 401k that had contributions made to it during the term of the marriage is subject to equitable division. This does not guarantee that you will receive half or a portion of the 401k, but the 401k is definitely up for division. It can be divided by what is called a QDRO, or Qualified Domestic Relations Order, without tax consequences if the funds are placed in a separate IRA.
Answered on Jun 14th, 2011 at 2:34 PM
You may be entitled to some of the 401K money. What the court does in a divorce is to look at all of the property and all of the debts, and then divide all of the property and debts up in a way that the court thinks is "fair and equitable." In reaching what the court thinks is fair and equitable, it looks at a number of issues. So, depending on the facts and circumstances of your case and depending on how the other property gets divided you may be entitled to some of the 401K money.
Answered on Jun 14th, 2011 at 2:34 PM
Family Attorney serving Seattle, WA
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Seattle Divorce Services
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Under Washington law, retirement assets acquired during the marriage are community property and subject to division by the court. If your husband does not want to tough the 401K, then he needs to offer you something else of comparable value.
Answered on Jun 14th, 2011 at 2:25 PM
Criminal Defense Attorney serving Monticello, MN
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Smith, Paulson, O'Donnell & Erickson, PLC
1 Award
Any property that is acquired during the divorce is marital property. The Court can award you an equitable portion of the 401(k) as a part of the divorce.
Answered on Jun 14th, 2011 at 1:59 PM
Bankruptcy Attorney serving Huntington Beach, CA
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The English Law Firm
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If the 401K is accrued during marriage in a community property state such as California, then you would have a claim to it or equivalent value property that could take the form of an equalization payment.
Answered on Jun 14th, 2011 at 11:42 AM
Collections Attorney serving Ypsilanti, MI
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Collis & Griffor, PC
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Retirement funds are subject to division in most divorce cases.
Answered on Jun 14th, 2011 at 10:36 AM
Alternative Dispute Resolution Attorney serving Ventura, CA
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Zahn Law Office
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It sounds like, based upon what you are saying, that the 401(k) is entirely community property, so you would be entitled to half. If you are in my area and are looking for an attorney, please contact me for a free consultation.
Answered on Jun 14th, 2011 at 10:21 AM
Bankruptcy Attorney serving North Olmsted, OH
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James F. Lentz Attorney & Counselor at Law
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He just thinks he isn't touching his 401(k). In Ohio , Michigan and most states, 401(k) assets accrued during the marriage are an asset to be divided with all other marital assets. We do this with a document called a Qualified Domestic Relations Order (QDRO). Please seek counsel soon so that you can file first and get a restraining order in place to prevent him from touching his 401(k) before the court can equitably divide it.
Answered on Jun 14th, 2011 at 10:09 AM
The law of all 50 States provides for division of retirement benefits accrued during marriage as the property of both spouses - in other words, half of that money is presumptively yours. Lots of information on that point is posted on the websites in my address block below.
Answered on Jun 14th, 2011 at 10:08 AM
Family Law Attorney serving Everett, WA
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Burkhalter Law PLLC
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The Court will divide the net assets and liabilities of your estate fairly and equitably.
Answered on Jun 14th, 2011 at 9:59 AM
Family Law Attorney serving Fountain Valley, CA
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Law Office of Edwin Fahlen
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Your husband may not be "touching" his IRA but you certainly may, in fact you can not only touch it, you will receive one-half of what was contributed during the marriage, along with any profits thereon. At least that is what you will receive through this office. You each are entitled to one-half of everything accumulated during the marriage, whether it is an asset or an obligation. Even items that may be in only one persons name is still community property if it was acquired during the marriage, absent any documentation to the contrary, and it was not a gift, or inheritance.
Answered on Jun 14th, 2011 at 9:48 AM
Under California community property the 401k is a community property asset. According to your question all the contributions were made during the marriage. If this was the only asset from the marriage, the law would divide it equally between the two of you. Your share, pursuant to a Qualified Domestic Relations Order (QDRO) would be able to transferred directly to an IRA of your choice without being taxed . It would be taxed to you later when you commenced withdrawals.
Answered on Jun 14th, 2011 at 9:47 AM
Glen Edward Ashman
Get a lawyer ASAP. The increase in value of a 401K during a marriage is marital property subject to division in a divorce.
Answered on Jun 14th, 2011 at 9:47 AM
Debra L. Palomino
You have a community interest in the amount accrues during marriage. So, no he is not being reasonable.
Answered on Jun 14th, 2011 at 9:42 AM