Do I Get Half of My Husband’s 401(k) in a Divorce?

Do I Get Half of My Husband's 401(k) in a Divorce?

In the event of a divorce, you may get half of your husband’s 401(k), accrued from the day of marriage up to the day of separation, depending upon the following factors:

  1. Terms of the prenuptial agreement
  2. Length of marriage
  3. State laws

1. Terms of the Prenuptial Agreement

The terms of a validly executed prenuptial agreement, if there is one, will very likely take precedence over the state’s property distribution laws. Generally, if your prenuptial agreement states that any financial asset is not to be divided in the event of divorce, then, in theory, you may not be entitled to such assets. However, where 401(k) is concerned, take the following circumstances into account:

The 401(k) accumulated during the marriage is considered marital property, which is generally distributed 50/50. So, you can always contest that you are entitled to a share in the common marital assets even if the prenuptial agreement says otherwise. That said, your husband is likely to claim that the 401(k) funds he accumulated prior to marriage cannot be distributed because that money is his separate property, and his request is likely to be accepted.

2. Length of Marriage

In general, marital property is divided 50/50 even in short-term marriages. So, in all likelihood, you will be entitled to 50% of your husband’s 401(k) funds accrued during the marriage. His pre-marriage 401(k) balance is considered as his separate property, and it may not be divided on divorce.

3. State Laws

States follow either the community property distribution law or the equitable property distribution law. In general, common marital property is divided 50/50 in most divorce cases, in all the states, whether they follow community distribution or equitable distribution. So, in either case, you may be entitled to 50% of the 401(k) funds accrued during the marriage.

With that clarified, here is how you should go about claiming the 401(k) funds and other financial assets:

How to Claim 401(k) and Other Financial Assets in a Divorce

Consult an Experienced Divorce Attorney

Any financial asset that is accrued or purchased during the marriage (from the date of marriage to the date of separation, or, in some cases, through the date of the signing of the divorce decree) becomes common marital property and you are entitled to a share in it, 50/50 in most cases. Division of a retirement fund can be very tricky because it is usually tied to the stock market. To be sure and safe that you are getting the sum that is rightfully due to you, work with an experienced divorce attorney who has successfully resolved many cases involving property division in which 401(k) funds were divided.

Reputed and experienced divorce attorneys are networked with finance professionals, so ask your attorney to help you review and value (as applicable) your husband’s 401(k), life insurance policies, savings accounts, other retirement funds, credit cards, stocks, court orders related to an earlier marriage (if applicable), wills, prenuptial agreements, stock options, etc., and include them appropriately in your claim.

Obtain a Qualified Domestic Relations Order (QDRO)

After determining all your husband’s financial assets and getting them valued, you need to obtain a Qualified Domestic Relations Order (QDRO) to divide financial assets like the 401(k). Typically, the QDRO instructs the retirement plan administrator about how to split the assets. Obtaining the order is best left to your attorney.

Protect Your Money And Your Family

We remove fear associated with divorce, protect your money & maximize time with your kids!

We're here to help. Let's determine your best options.

Call Us 24//7 at 801-685-9999 to Speak with a Live Representative

Utah Divorce FAQs
Top 100 Divorce Blog
What Clients Are Saying…
BrownLaw icon
Excellent
Brown Family Law
4.8
Based on 910 reviews
I cannot say enough good about my experience with Brown Family Law. Ray Hingson and paralegal Carren did an excellent job with my case. I will definitely use this firm again for any legal issues.
I have worked with Andrew Christensen many times in a variety of situations. I am very impressed with his friendly demeanor in a difficult situation. I would highly recommend him to you without any reservations.
Highly recommend Brown Family Law. Life is hard, divorce is harder, and Andrew Christensen is your guy to help you through to the other side.
When you’re going through a tough time and need legal help, this firm isn’t just a one-person operation. It’s a team of attorneys who work together to support you every step of the way. So you’re not just getting a lawyer, you’re getting a legal team behind you.

Navigating the legal system was a steep learning curve for me, and my situation was fairly complex. What stood out about this law firm was the way multiple attorneys collaborated to address my case. It wasn’t just one person working in isolation, but a team supporting each other to find the best path forward. That kind of collective effort is a real strength, especially in hard out complex situations like mine.

There was one issue I felt should have had a different outcome with the court. When I brought it up, the team responded in a very professional and respectful manner, which I truly appreciated. It came to my understanding that the legal system sometimes works in a way that is distant than I thought. This was presented to me in a way that someone outside of the legal system could understand.

In my experience, this firm takes the time to not only assist you, but also help you understand why things are happening. That made a big difference for me, and it’s something that really sets them apart.
Response from the owner:David, thank you for our conversation and taking the time to leave this review.
My experience with Jennifer and Brown Family Law was nothing short of amazing. From the very beginning of my initial consultation all the through until my case was settled, I was well taken care of and updated every step of the way. I felt like my team genuinely cared about the outcome of my case, which was refreshing. You get what you pay for, and Brown Family was worth every penny. To say I highly recommend this group is an understatement.
Response from the owner:Thank you very much, Steve. Glad Jennifer took good care of you.
Andrew Christensen was a great divorce lawyer. He is very experienced, professional, and was great to work with during this difficult process.
Response from the owner:Casey, thank you and so glad Andrew served you well.
Made my divorce quick and painless. 5 months ago I was feeling very overwhelmed. There was legal issues with protective orders, my ex wife had taken my kids to another country without my consent, I was in way over my head. After speaking with brown law they calmed my nerves took over my case. A few video calls and 5 months later my divorce is finalized with a fair outcome for everyone. It was easy and stress fee, it didn’t even feel like I was going through a divorce.
Response from the owner:Thank you so much, Brian. Sorry you went through all of that, but glad we were able to help.
Jennifer was excellent! She was always responsive and kept me updated on my case. while the billing was a little different from what I expected, her expertise was invaluable. I highly recommend her. And I appreciate everything she's done for me and may case.
Response from the owner:Jennifer, thank you and glad Jennifer was able to help you and kept you updated.
Going through the divorce process can be overwhelming, exhausting and emotionally draining.
I did my homework to find the perfect lawyer to represent me knowing I could have peace of mind throughout the process.
Leilani Whitmer and her paralegal Idania did not disappoint. Their professionalism and dedication to my case was outstanding and fair.
Leilani had just had surgery a few days before mediation and showed up on crutches and ready to go. That’s dedication!!!
I am highly recommending them to anyone looking to feel at ease during a difficult time.
Response from the owner:Lesia, glad Leilani and Dani took such good care of you.
Anne-Greyson helped me with my post divorce issues after Clay handled my divorce. She was amazing in getting my issues resolved and I was even more thankful to have worked with Brown Family Law again. I will never stop praising this team for all of their hard work!!
Response from the owner:Belynda, thank you for your kind words.
js_loader

Categories