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LegalGems
LegalGems, Lawyer
Category: Family Law
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Experience:  Experienced Family Law Attorney
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How are pensions and 401k 's due to the divorce in a

Customer Question

How are pensions and 401k 's due to the divorce in a marriage distributed when both differ greatly in monetary value. MD state
Submitted: 1 year ago.
Category: Family Law
Expert:  LegalGems replied 1 year ago.

The court has authority to divide any marital property -that includes property acquired during marriage, excluding those acquired by gifts/inheritances.

The court will divide such property, including pensions and 401Ks, in an "equitable fashion" -this does not necessarily mean equal; rather the court will divide the property in a manner in which they deem fair.

The QDRO is typically how pensions are distributed: a qualified domestic relations order; basically the parties, the court and the plan administrator will work together to ensure that the order that directs distribution reflects the court's orders regarding the division of the asset.

Factors the court will consider when dividing property under the equitable theory:

  • what each spouse contributed, both financially and otherwise, to the well-being of the family
  • the economic circumstances of each spouse
  • how long the marriage lasted
  • the age, health, and physical and mental condition of each spouse
  • how and when specific assets were acquired
  • whether either spouse contributed separate property to property the couple owns as tenants by the entirety
  • whether either spouse has been awarded alimony and/or possession of the family home, and
  • whether either spouse committed marital misconduct that contributed to the divorce.

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