Am I entitled to 1/2 of pension plan and his 401K?

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Am I entitled to 1/2 of pension plan and his 401K?

Been married 30 years and divorcing. He has a painter’s retirement and a 401K. I live in Texas and am wondering what are my rights to that and when can I get it. I do not think I can afford a lawyer and want to be as prepared as I can be when we go to court. It was filed on March 31.

Asked on May 14, 2009 under Family Law, Texas

Answers:

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

Answered 11 years ago | Contributor

Texas is a community property state.  Only the following types of property are considered separate and will be awarded to the individual owner of the property in a divorce:
  1. property owned prior to marriage;
  2. property acquired at any time by gift or inheritance;
  3. recoveries for personal injuries sustained by a spouse during marriage (except for loss of earnings); and
  4. property exchanged for above items 1 - 3.

All other property acquired during the marriage is community, which means husband and wife will share these assets upon divorce.  Community property is divided in a just manner.  This does not necessarily mean equally, but an equal division is a good rule of thumb.  The value of all the property is to be determined as near as possible to the date your divorce takes place.  It may be necessary to hire appraisers to value your home, business, or even retirement assets.  If your husband opened his retirement accounts during your marriage, the are part of the "community".  If he had them before the marriage, but added to it with money he earned during the marriage, ("community money"), they will likely be ruled as community since he will have mixed separate assets with community assets so as to make them indistinguishable.  It is also necessary to determine current debts of the community, or monies owed.

If you cannot afford a lawyer, but you and your husband can work things out in a friendly manner, there are mediators who work with divorcing couples.  Check with your local bar association and with the family court.  Good luck.

 


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