3 Steps to Divide Your 401(k) During Divorce


This article was republished by Investopedia here.

During your divorce proceedings, the division of assets goes beyond household income and bank account holdings. To fairly divide the funds accumulated throughout your marriage, the funds placed in 401(k) accounts will come up as well. Every state has its own specific protocol, but you can confidently head into this process by thoroughly understanding the way courts strive to fairly divide these retirement account holdings for each spouse.

1. Determine Marital vs. Separate Property

The first task in the division of 401(k) accounts is identifying the amount of funds placed in the accounts during the marital period. Funds placed in these accounts prior to the marriage are usually not considered assets eligible for distribution to both parties in the divorce. In general, assets owned by either spouse before the marriage, including 401(k) funds, are considered separate property. However, if you have any 401(k) accounts with contributions made after you were married, you will likely be dividing those funds as part of the marital pie.

2. Calculate the Division of Shared Assets

The state you live in will determine the way your overall assets are divided during the divorce proceedings. In community-property states, the 401(k) funds that qualified as marital assets will likely be split 50/50 between both parties. However, in equitable-distribution states, the judge may split the assets differently because they are looking at the entire picture (although the main goal remains the equal division of assets).

Now is the time to identify all other shared assets that qualify for division between you and your spouse. You do have some leeway in negotiating the way the assets will be divided, if your spouse agrees with the plan. (For related reading, see: Divorcing? The Right Way to Split Retirement Plans.)

3. A Qualified Domestic Relations Order Finalizes the Split

In addition to obtaining a properly completed divorce decree, your lawyer—or an expert retained by your lawyer—must fill out and submit a qualified domestic relations order regarding your retirement account. This document indicates that the account must be split according to the divorce order.

Upon approval by the judge and account administrators, your name will be added on the 401(k) as an additional payee. Since this document finalizes the agreements made prior to it, it must be filed with the court to confirm and enact the distribution plan.

Final Thoughts

With the above steps, you should be able to claim the retirement assets during the divorce that are owed to you. Taking the time to appropriately navigate through the distribution of 401(k) plans that were established during your marriage will help protect your financial future. To avoid serious financial repercussions at the finalization of your divorce, you can work with a trusted advisor. Then you will be sure you have completed each vital step.

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Shawn Leamon, MBA, CDFA is the host of the “Divorce and Your Money Show” and Managing Partner of LaGrande Global, with offices in Dallas, New York and Hanover, New Hampshire.

Shawn Leamon, MBA, CDFA

Dallas, Texas

Shawn C. H. Leamon is Managing Partner of LaGrande Global, a firm that helps successful families manage large financial transitions like divorce, inheritance and selling a business.

He earned his Bachelor of Arts from Dartmouth College, double majoring in Economics and Philosophy, and his Masters in Business Administration at Spain’s IE Business School.

Before founding LaGrande Global, Shawn helped manage $1.1 billion in client assets at Bernstein Global Wealth Management. He also worked as a credit research analyst at J.P. Morgan. He is a Certified Divorce Financial Analyst, and he has been an advisor to numerous high-stakes divorce cases.

Shawn is the author of two well-received finance books: Managing Private Wealth: Principles, and Divorce and Your Money: The No-Nonsense Guide, both published in 2016.

In his spare time, Shawn is an ultra-endurance athlete and has competed in events as long as 24 hours. He is an Eagle Scout and a member of the Alumni Board of Greenhill School.