QUESTION
If the marriage is less than 10 years is the spouse entitled to the 401K retirement benefits in MI?
Asked on Oct 10th, 2012 on Estate Planning - Michigan
More details to this question:
The 401K grew during a 7 year marriage, is the spouse entitled to any of the funds in a divorce?
6 ANSWERS
Business Law Attorney serving Livonia, MI
at
Gerald A. Bagazinski
Update Your Profile
A 401 (k) goes to the surviving spouse. If the funds have been moved to IRA account than the money goes to the beneficiary. A spouse cannot change the beneficiary designation on the account without the consent of the spouse. If the spouse signed a pre-nuptial agreement, the Supreme Court has ruled that the surviving spouse is the beneficiary because only a spouse can waive their rights.
Answered on Oct 11th, 2012 at 6:16 PM
Michigan divorce law and practice require that the rights to the 401K plan be specifically dealt with in the divorce decree. How depends on many factors and not in isolation from the entire divorce estate. A rule of thumb used by some judges would consider dividing only the increase in the value of the 401K between the parties. Others would divide 7/10 of the entire plan between them.
Answered on Oct 11th, 2012 at 11:38 AM
Regardless of the length of the marriage, the marital estate is usually divided in half at the time of the divorce. That means any amount put into a 401k during the marriage should be split about equally (or offset against another asset) along with everything else accumulated during your years together.
Answered on Oct 11th, 2012 at 11:37 AM
Appellate Attorney serving Grosse Pointe Farms, MI
at
Musilli Brennan Associates, PLLC
Update Your Profile
Yes, a spouse is entitled, generally, to 50% of the accumulation during the marriage. Think of it as a marital savings account and get an attorney to represent you.
Answered on Oct 11th, 2012 at 11:36 AM
Business Planning Attorney serving Livonia, MI
at
Frederick & Frederick Attorneys at Law
Update Your Profile
It is one of those things that can be negotiated. Most divorce matters are settled. If it goes to the court, the judge can decide whatever the judge decides. There is an argument that this is marital property, but not a compellingly strong argument. I would try to use it as a bargaining chip, myself. It would be costly and expensive for you to try to secure part of that account. Best of luck to you! Having lived through a divorce myself, I know what you are going through, and it is no fun! Things can be much brighter on the other side, once you get through it, however.
Answered on Oct 11th, 2012 at 11:35 AM
Most likely the spouse will be entitled to some of the 401K - maybe even half depending on the facts.
Answered on Oct 11th, 2012 at 11:33 AM