My husband and I both want a divorce but he doesn’t want to include the 401k, am I entitled?

Question

I got married in 1996 and stayed with my husband to 2002. We separated and lived separate lives until now 2013.

Richard Wooster · Answer

You are entitled to the portion earned while together and the interest earned.  Sounds like you should hire my partner.

Daniel J. Pingelton · Answer

Yes you are.

Cathy Cook · Answer

You are entitled to one-half of the 401k for the "duration of the marriage". If you financially separated in 2002, that would be from 1996-2002.

Elizabeth Jones · Answer

You are entitled to your  community property share from the date or marriage to the date of separation.

Mark T. Peters · Answer

You are entitled to one-half of the 401(k) for the period of time you are married.  So you get married in 1996 when he starts his new job and divorce in 2013.  You would be entitled to ? through 2013.  If he started working 1983, you would be entitled to (17/30) times the amount in the 401(k).  He may be able to make an argument that your community property rights stopped accruing in 2002, but that would take a substantial amount of research for which you should really pay an attorney for the answer.

Frances Headley · Answer

The 401k must be included unless it was not established until after your separation in 2002.

William Wilson · Answer

Yes- assuming it was accumulated during the marriage

Anne Howard · Answer

You should be entitled to half 401k earned during marriage. He has to include it. Since date of separation his contributions are his.

Julie Ringquist · Answer

You are entitled to one half of any amounts (and the growth on those amounts) which were accumulated during the marriage.  Unless you have a similar asset that was earned during the marriage and you each agree to just take what is your own (rather than each divide the two similar assets), then you should be getting the half of the 401k earned during the marriage.

Nicholas Zales · Answer

There has to be a 50-50 or close to it division of property including the 401K. He can keep it if he gives you something else of equal value. Otherwise, he may not be able to keep it. You own half of everything you two have, including the 401K. Be sure and get yourself a lawyer. A few thousand spent today?could be worth?tens of thousands tomorrow.?

John Brennan · Answer

I would suggest some compromise would be in order, a splitting of the funds accumulated during the time you were together, plus the gains on those funds, comes to mind. See an experienced attorney who can help you settle and get this done.

Oscar Toscano · Answer

The period from 1996 to 2002 is community property.  The rest is his.  You are entitled to a proportionate share only

Annette Sandoval · Answer

You are entitled to a portion of the 401k that was accrued during the marriage and the increase in value of those particular portions.  A qualified domestic relations order is often prepared to divide out your interest.  I would suggest consulting an attorney to discuss what you are entitled to, the costs and benefits of pursuing the retirement and the process.

Eric Lumberg · Answer

The portion of the account earned during the marriage is part of the divorce process.

Lynda Leblanc · Answer

The court assumes a 50/50 split of all assets and debts is equitable.  The portion of the 401(k) earned during the marriage is part of the marital estate and is up for grabs.

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My husband and I both want a divorce but he doesn’t want to include the 401k, am I entitled?

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