What happens to your 401k in a divorce depends on when your account was opened.  If your 401k account was in existence prior to the date of your marriage and if you are like most people, continued to contribute to this account during the marriage, your 401k may be part-non-marital and part-marital property.  On the other hand, if you had a 401k or similar account prior to the date of marriage and you never contributed any marital funds to that account, it will remain non-marital funds.  (Paycheck funds and any other funds paid to you from your physical efforts during your marriage is marital property).

How much of my 401k is marital and how much is non-marital?

To begin this analysis, you will need to gather your account statements.  Specifically, the statement that shows the account balance at on the date of marriage and the statement on the date your divorce was filed.  Once you have these two important documents, you will want to contact an experience divorce attorney to help you with the calculation.  In the end, the balance on the date your marriage is considered non-marital.  You are also entitled to receive any return on that amount based on market activity.  When you have calculated the amount of return on your non-marital portion, then you subtract the non-marital portion from the balance at the time of filing for divorce.

These calculations can get tricky so it is important that you speak with an attorney who can guide you through this process.  Remember you are not alone.  We have experienced attorneys that handle 401k, retirement accounts, IRA, investments in divorce matters.  It is a scary process, and nothing should be presumed.

We handle divorce, parenting, timesharing, child support, alimony, and many other related matters.  We have litigation attorneys ready to advocate for your family’s needs.