Is my spouse entitled to 401k contributions after the date of our legal separation?

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Is my spouse entitled to 401k contributions after the date of our legal separation?

Asked on June 24, 2015 under Family Law, California

Answers:

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

Answered 6 years ago | Contributor

If your contributions to 401k represent income earned after your legal separation, then that income is your separate property and your spouse has no claim to your separate property.

If  your contributions to 401k, even though made after separation, include income earned during marriage, then that portion representing income earned during marriage would be community property and your spouse would be entitled to one half the amount that was earned during marriage.  If the contributions to 401k include both income earned during marriage and income earned after separation, then your spouse's share would be proportionate representing only the share of the community property.

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

Community property is income earned during marriage.  Each spouse has a one half interest in the community property.  Community property also includes property acquired during marriage.

 


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