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Lucy, Esq.
Lucy, Esq., Lawyer
Category: Family Law
Satisfied Customers: 29553
Experience:  Attorney with experience in family law.
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401K and community property

Resolved Question:

Now regarding 401K accounts. I took 8K out of my 16K account and she has over 20K in her account. How much of each are we both entitled to in the event of community property after a divorce?
Submitted: 5 years ago.
Category: Family Law
Expert:  Lucy, Esq. replied 5 years ago.

My name is XXXXX XXXXX I'd be happy to answer your questions today.

If you spent the $8k on items for the marriage, like house payments or things like that, then it usually wouldn't be part of the distribution, and your wife would get $4k of the $8 remaining. However, if you and your wife are separated and you took that money out to live on, then she would be entitled to the remaining $8,000 in your account, and you would be entitled to approximately half the money in her account.

That's a very basic analysis. if either of you had the account before you got married, the funds that were in the account on the date of the marriage are NOT subject to equitable distribution. In that case, the spouse would only be entitled to half of the amounts contributed during the marriage.
Customer: replied 5 years ago.
So If I used the 8K of the money for a child custody battle While we were married, then after the fact we legally seperate she is only entitled to half of the remaining 8K and I am entitled to half of her account since both accounts were made while we were married.
Expert:  Lucy, Esq. replied 5 years ago.
If you used the money to pay for a custody battle after you separated - like for lawyers fees? - then that's not considered to be money spent on the marriage itself. So, your wife would be able to ask for half the monies before you took that out, which means that she would probably get the remaining $8k.
Customer: replied 5 years ago.
Let me reword this. While we were married I pulled 8K out of my 401K so that I could pay lawyers fees for not only the custody battle but to also get her a power of attorny so she can care for my son while I was out of town in case of medical emergencies. It was several months latter after the money was already spent that we seperated. I used 1900 of it to pay for the adultery divorce.
Expert:  Lucy, Esq. replied 5 years ago.
Oh, OK. I thought you meant it was for a custody battle against her. If it's money that was spent as part of the daily life of the marriage, while you were still together, she's not really going to have a claim to that money. Sometimes, we have to take money from the bank to live on and pay unanticipated expenses. That's OK. The judge has a lot of discretion, so he could still award her a larger portion of that $8k, but you'll be able to argue that only the remaining $8k is subject to equitable distribution.

It would be different if she had some evidence that you were just taking the money and putting it in a secret bank account or something. But, if you were using it for necessary expenses during the marriage, that's a legitimate use, and you can ask that the judge only split the money in the account at the time of separation.
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