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If both parties have 401k plans, how is that worked out

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If both parties have...

If both parties have 401k plans , how is that worked out concerning the divorce?

Lawyer's Assistant: What steps have been taken? Have any papers been filed in family court?

No not yet

Lawyer's Assistant: Family law varies by state. What state are you in?

Texas

Submitted: 2 months ago.Category: Family Law
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Answered in 7 minutes by:
5/30/2018
Family Lawyer: Sean K, Family Law Attorney replied 2 months ago
Sean K
Sean K, Family Law Attorney
Category: Family Law
Satisfied Customers: 976
Experience: Family Law Attorney in Private Law Firm
Verified

Hi, I’m Sean and I will be assisting you as an expert today. I’m an attorney with more than 20 years of experience. It is my goal to provide a solid overview of your situation. Whether the analysis is good or bad as to your matter, I want to make sure you understand any points you need and that you have options to better address the questions you have. If I am able, I will also provide you with some resources. Please note that the system, independent from me, may offer a phone call. You are not obligated to engage in a phone call, but I am happy to speak if you desire. This is completely up to you.

I will just focus the answer to this on the division of 401k plans in a divorce. If there is other property, that would also have to be included.

Let's say that Spouse 1 had a 401k of $100,000 and Spouse 2 had a 401k of $180,000. Let us also say that when the parties were married, Spouse 1 did not have a 401k (all of it was earned in the marriage) and that Spouse 2 had $30,000 in their account (as shown on a statement from the time of the marriage.)

Generally (I say generally as the specifics on the growth of the $30,000 could lead to some marital property being created, but for this purpose I will just call it $30,000 as separate property.)

So that leaves Spouse 1 with $100,000 of marital retirement and Spouse 2 with $150 of marital retirement. That is a combined total of $250,000. Absent some particular finding or reason for offset (not common) the Court would likely divide the $125,000 equally so each spouse would end up with $125,000 of the marital retirement.

In the end it would look like this.

Spouse 1 would have $125,000 with $25,000 being transferred to them (this could be done via a tax free exchange) from Spouse 2.

Spouse 2 would have the $125,000 of the martial part of the retirement plus their $30,000 as separate property for a total to Spouse 2 of $155,000.

Essentially Spouse 2 kept their nonmarital or separate retirement from prior to the marriage and the two equally shared in the marital portion.

Please let me know if you have any further questions or if there are more questions based on what I have provided.

Please note: This is general information for educational purposes only and is not legal advice. There is no specific course of action is proposed and no attorney-client relationship or privilege formed within this conversation.

If you have any follow up questions it would be my pleasure to answer them. As experts we only get credit for the time and effort we spend on our answers if you rate us positively - 5 stars is definitely appreciated but not required! There is no cost associated with you rating me and you can still ask follow up questions after rating me and I will respond.

One final point, there may be a delay between your question and my answer; this is because I'm either not at my computer or helping someone else but rest assured, if you ask, I will provide an answer. Thank you again.

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Category: Family Law
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DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.

The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).

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