QUESTION
Can I still get half of my ex husband's 401k after two years?
Asked on Sep 01st, 2011 on Child Custody - New Jersey
More details to this question:
We have been separated for two years, he filed for divorce, is there a time limit as to when I can file to get half of his 401K? I heard that since I'm not the one filing and it's been over two years I am no longer entitled to it. Is this true?
18 ANSWERS
Steven D. Dunnings
It is not true. This is why you need to hire an attorney.
Answered on Jun 11th, 2013 at 1:12 AM
Patricia C. Van Haren
That is not true. If you respond to the divorce and you request the property distribution, you will be entitled to 1/2 of the community share of the 401K. If you have been defaulted then you may not be entitled to it.
Answered on Sep 02nd, 2011 at 8:32 PM
No, this is not true. Property division is presumed to be 50/50 but other factors can be considered. However, being separated two years is not one of them.
Answered on Sep 02nd, 2011 at 7:22 PM
Family Law Attorney serving Everett, WA
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Burkhalter Law PLLC
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Not true. The Court will make a fair and equitable division of your assets and debts.
Answered on Sep 02nd, 2011 at 7:13 PM
Roianne Houlton Conner
It depends on how long you have been married. If you have been married over ten years you might be awarded some of the 401K that he had at the time of the separation but nothing that he has earned since the separation.
Answered on Sep 02nd, 2011 at 9:54 AM
Glen Edward Ashman
Get a lawyer NOW. Within 30 days of service, you need to file your answer and counterclaim. His 401K is generally marital property and can be divided. You need counsel and should not sign anything without a lawyer.
Answered on Sep 02nd, 2011 at 9:18 AM
Bankruptcy Attorney serving North Olmsted, OH
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James F. Lentz Attorney & Counselor at Law
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If the 401(k) was earned 100% during your marriage you may be able to get a share of it. Please discuss this with a domestic relations attorney.
Answered on Sep 01st, 2011 at 8:43 PM
Medical Malpractice Attorney serving Clermont, FL
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Joanna Mitchell & Associates, P.A.
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Nothing is final until your divorce is final. You should consult with an attorney.
Answered on Sep 01st, 2011 at 8:24 PM
Contract Negotiations Attorney serving Miami Lakes, FL
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Florido & Associates, P.A.
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In the State of Florida you may be entitled to a portion of all contributions made to his 401K plan.
Answered on Sep 01st, 2011 at 8:12 PM
Yes, you can - but you should proceed quickly (before the money "disappears"), and you will need a "QDRO" to actually get it moved to your name. The websites linked in my address block below explain what to do, and how to do it.
Answered on Sep 01st, 2011 at 8:11 PM
Probate Law Attorney serving Colorado Springs, CO
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John E. Kirchner
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The only "time limit" is the final orders date in the divorce case. All property issues need to be agreed to or decided by the judge at the same time and in connection with the final decree dissolving the marriage. There is absolutely no connection between who files for divorce (i.e. starts the divorce case) and when you can make your "requests" concerning property. A 401k is at least partly marital property and all marital property must be divided fairly. Whether or not you can get half of the current balance depends on the whole big picture of the financial situation. If the divorce case is not over and done with, whoever told you were no longer entitled to a fair share of the marital property doesn't know what they are talking about. If the divorce is final, however, and the 401k was not dealt with, it may be possible to reopen the property distribution. If that is the situation, you need to consult an attorney about how to re-open the case.
Answered on Sep 01st, 2011 at 8:05 PM
Generally speaking, you are each entitled to half of any retirement assets that have accumulated from the date of marriage to the date the divorce papers are served, regardless of how long you were separated. You would not be entitled to any part of his retirement that accumulated before you were married or after the date of service. I recommend you speak with an attorney to learn more about your rights in a divorce action.
Answered on Sep 01st, 2011 at 7:59 PM
Criminal Defense Attorney serving Pittsburgh, PA
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Law Office of Jeffrey L. Pollock
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You need to file for Equitable Distribution in order to make a claim against any marital assets. Before the Divorce is final, file a Counterclaim or Petition Raising Claims to address issues like the 401(k).
Answered on Sep 01st, 2011 at 7:41 PM
General Civil Trial Practice Attorney serving Beaverton, OR
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Vincent J. Bernabei, LLC
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You are entitled to of the 401(k) that was acquired during the 2 year marriage.
Answered on Sep 01st, 2011 at 7:41 PM
Family Law Attorney serving Las Vegas, NV
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The Law Offices of Mandy J. McKellar
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As long as this was earned during the marriage you are entitled to your community portion.
Answered on Sep 01st, 2011 at 7:41 PM
Civil Attorney serving Spokane, WA
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Glenn E. Tanner, Attorney at Law
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Regardless of who has filed or when you are entitled to a fair and equitable division of all the assets and debts. Whether that means you are entitled to any of the 401k is not possible to say without knowing a lot more.
Answered on Sep 01st, 2011 at 7:40 PM
4 Awards
What you have heard is not correct. In Louisiana you remain a co-owner of community property if it has not been divided or apportioned between you. If you and your husband were married when the 401(k) was created or during part of the time of its existence, you have a claim. You should see an attorney and pursue your rights in this matter.
Answered on Sep 01st, 2011 at 7:33 PM
Gary Moore
You are entitled to a portion of his 401k which accumulated between the date of your wedding and the date of either the date of your separation or the date of the filing of the divorce complaint.
Answered on Sep 01st, 2011 at 4:16 PM