Is a spouse entitled to 1/2 of the employer’s contribution to a 401K ?

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Is a spouse entitled to 1/2 of the employer’s contribution to a 401K ?

We are trying to divide assets fairly. I believe that only the portion that was made as a deduction from pay should be divided since it otherwise would have been available for marital use.

Asked on August 12, 2011 Connecticut

Answers:

MD, Member, California Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

401ks can be considered marital assets but usually only those portions of the 401k accrued during marriage (and prior to separation) would be a marital asset. Depending on what type of state you live in (community property or equitable distribution), the 401k can be split half and half or assigned a percentage to each spouse. Further, the process of separating those monies and cashing out as part of the divorce decree will naturally occur as a secondary order once the actual distribution percentages are assigned. Talk to your 401k company about the dates you acquired the asset, and ask for a full accounting history so you know what was accrued when and use that with the court to assign the amounts that would be considered a marital asset.


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