If married for less than 10 years is the wife able to take half of the husbands 401k in a divorce/dissolution?

Asked on February 29, 2012 under Family Law, Ohio


S.L,. Member, California Bar / FreeAdvice Contributing Attorney

Answered 8 years ago | Contributor

If you live in a community property state, community property is property acquired during marriage.  This includes income during marriage.  Each spouse has a one half interest in the community property.

Separate property is property acquired before marriage or after the marriage ends.  This also includes income before marriage or after the marriage ends.  A spouse has no claim to the other spouse's separate property.

That portion of the 401k which represents income during marriage is community property and your spouse would have a one half interest in that portion of the 401k.  For example, if you were married ten years, but worked for the company for thirty years, only that portion of the 401k representing income during the ten years of marriage would be community property to which your spouse would be able to claim half.  Income during the remaining twenty years you worked at the company  when you were not married is your separate property and your spouse would have no claim to that portion of your 401k representing that income.

If you don't live in a community property state, other rules may be applicable. 


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