Is my husband entitled to half of my 401k plan?

Question

If my husband and I get a divorce is he entitled to half of my 401k? We were previously married for 25 years and got a divorce for about 6 months then we got remarried and have been married for about 3 more years would this make a difference? First divorce he didnt want anything but now he saying he wants half of my 401k..

Steven D. Dunnings · Answer

What did the previous Judgement of divorce say about his entitlement to your retirement?

Tina Fox · Answer

Yes it does make a difference. If he did not want it the first time he cannot remarry you and decide that he wants it this time. Once it is waived it is waived.

Daniel B. Rubanowitz · Answer

Generally speaking, in California, a spouse is entitled to half of all property acquired during marriage, even a 401K Plan.  If your 25 year marriage ended with a proper Judgment and if your husband waived his right to  any interest in your 401K Plan at that time, then it seems that he would only have an interest in a portion of the Plan for half of the contributions (and a  half interest in the profits or losses generated, if any) made during the second marriage.  The existence of a pre/post marital agreement or other facts could result in a different outcome. On a related matter, please note that the income you generate from the plan, when you begin drawing from the plan, could be considered income available  for support purposes. This is a potentially complex issue which you should discuss with a family law attorney.

Jackie Geller · Answer

He is entitled to 50% of the value of the plan that accrued during marriage.  It's a bit complicated so speak to an experienced family law attorney asap.

John Kirchner · Answer

All marital property must be fairly divided; most people view 50/50 as fair, but that is not an absolute rule.  And, the fair division applies to the overall, total result - not to each item separately. At a minimum, the contributions to and appreciation in value of your 401k during your re-marriage will be considered marital property, but the characterization of the remaining value will depend in part how the first divorce settlement was handled.  Your facts present a complicated situation that will require the assistance of an attorney to examine the original divorce settlement and all of the relevant facts before there can be a clearer answer about your 401k and all other assets are to be handled by a judge, if you and your husband cannot agree on what is fair.

Patricia C. Van Haren · Answer

If your previous judgment divided the community property, including the 401K, your husband would only be entitled to  of the value accumulated during your second marriage to him.  You should take your previous divorce judgment to an attorney to review as it is impossible to determine what rights your husband may have without seeing the previous judgment.

James Lentz · Answer

I think you are going to be in for an argument.  My OPINION is that he would be entitled only to that portion of your 401(k) that received contributions during your second marriage.  But I would expect a battle, depending upon the circumstance.  Please see a domestic relations attorney for further planning strategies.

William Guy Pontrello · Answer

Yes if earned during marriage.

Roianne Houlton Conner · Answer

If he did not request the 401K in the first divorce, then a Court would probably not award him anything in the second divorce.

Joanna Mitchell · Answer

He would only be entitled to one half of whatever monies have been contributed to the 401k during the current marriage (the past 3 years). The prior one is irrelevant.

Jeffrey Pollock · Answer

My initial answer if you had not been previously divorced is that, since PA  is an Equitable Distribution state, then he would get whatever % of the  entire  marital estate would be equitable. If there were enough other assets  to  cover his "proper" %, then maybe your 401K would be safe. Since you were  only married for 3 years this time, then his ability to claim a portion of that  particular asset would now have to be addressed in light of your  "shorter" marriage length in conjunction with all the other relevant

Patrick "Leh" Meriwether · Answer

Whatever was accumulated during the marriage is subject to equitable distribution.  Since you have only been married for three years, the portion of your 401k that you had before the remarriage is your pre-marital property.

Monica H. Donaldson Stewart · Answer

This depends on the way your first divorce orders were written. If you were awarded your 401k in the first divorce, then it became your sole and separate property. That would not change by getting remarried (it would only change if you dismissed the first divorce). This means that he may only be entitled to 1/2 of what you have accumulated during this "second" marriage.

Paul J. Wallin · Answer

You have an interesting case. Your spouse is entitled to one half of your 401k during the period of your marriage. However, if your husband in the first divorce agreed in writing to not have any of your 401k then he might only be entitled to the small portion your 401k appreciated since you remarried him. This is the kind of critical thing you need to discuss with an experienced family law lawyer.

Michelle Fitzgerald · Answer

This is not your typical situation. You would want to speak to an attorney regarding your rights and what can be negotiated.

Marshal Willick · Answer

Oh, yes, it makes a difference.  Under certain cases (the York case, for instance), in a "double divorce" situation only property accrued after the remarriage is before the court for distribution.  Every case is different, however, and your best bet is a full consultation with qualified counsel.

Naomi Hirayasu · Answer

He waived any right to the pension at the time of the first divorce.  During the second divorce, he should only be entitled to 1/2 of three years worth of the pension.  Please contact me if you would like to discuss further.

Jay Neff · Answer

There is no fixed formula for dividing property and debts in a divorce.  All of the property is before the court:  your separate property, his separate property, and the community property.  The court's obligation is to make a fair and equitable division of that property after considering a number of factors.  Some of those factors are:  the age of the parties, the health of  the parties, the duration of the marriage, each party's education, each party's work history, the nature and extent of separate and community property, and other factors.  So, your spouse may be entitled to some of the 401k money or may be entitled to none of it.  It will depend on a number of factors.

Glenn Tanner · Answer

Was the first divorce in Washington. Then that should be considered a fair and  equitable division at that time andevrything prior to your second marriage your  separate property. You need an attorney to artfully argue this and research  this or the court may think it is looking at a 20 plus year marriage and not a short one.

Michael Fancher · Answer

Under Washington law, while all property is before the court to decide  how it should be divided, as a general rule the court awards each party  their separate property (acquired outside of the marriage) and divides  the community property (the division is not necessarily in half).  Since  this marriage has only been for about three years, the community portion  of the 401K would only be the part of the 401K that you acquired during  that three year period.  The portion that you had coming into the  marriage should be treated as your separate property.  In other words,  he would likely only be awarded a small portion of the 401K (or some  other offsetting asset).

Tajara Dommershausen · Answer

Way too in depth of a question for this forum but likely he is entitled depending on first divorce papers.

Glen Edward Ashman · Answer

First of all, Georgia does NOT have community property, so 50-50 isn't how Georgia does it.  Georgia does have equitable distribution, which means a judge will do what he thinks is fair.  That certainly may mean some division.  You need a lawyer for a complex case like this.  Get one.

Steven Burkhalter · Answer

I have seen this "issue" go both ways.  Ultimately, the Court will make a fair and equitable division of assets and debts.  The Court will consider both separate and community property.  A major issue in your case is what was stated in the first divorce decree.

Vincent Bernabei · Answer

He gets 50% of the 401(k) earned during your second marriage, not 50% of the entire plan.

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