Can I keep my 401K?

Asked over 1 year ago - Orlando, FL

I have a 401K that has been accumulating funds for 15 years. My husband had one, but took out the money when he quit his job a few years ago. He has refused to get a job and is living right now on unemploment and a small pension. We are constantly battling and I see a divorce in our near future. Can he legally take half of my 401K?

Attorney answers (3)

  1. Heather Morcroft

    Contributor Level 20


    Lawyers agree

    Answered . You would address that issue at mediation, or the court would address it at trial in determining equitable distribution. Normally a spouse is entitled to a portion of the other spouse's pension that they accrued during the time they were married. You should meet with a family law attorney to review your entire financial picture in order to best preserve your rights.

    ***Please be sure to mark if you find the answer "helpful" or a "best" answer. Thank you! I hope this helps. ******
  2. Eileen D. Jacobs

    Contributor Level 14


    Lawyers agree

    Answered . It is not a matter of your husband taking half of your 401k, but, from a legal standpoint, whether there is an equitable distribution of the marital property. You do not give enough facts for an attorney to give you a specific answer. However, you should be aware that divorce does not necessarily result in each party receiving half of each asset. Rather, it is more a matter of offsetting the value of one asset with another. If one of the parties has dissipated a marital asset, then that can be considered by the court, if the issue is properly raised.

    Consult with an experienced family law attorney, so that you can receive a meaningful answer to your questions.

    The above post is not intended as specific legal advice, since not all pertinent facts are known to the posting attorney. This answer does not constitute legal advice or create an attorney-client relationship.

    Eileen D. Jacobs, Esq.
    Office: 2505 W. Virginia Avenue
    Tampa, FL 33607
    (813) 877-9600
    Mailing: P.O. Box 14953
    Clearwater, Florida 33766-4953
    (727) 787-6595

  3. William Charles Rosenfelt

    Contributor Level 20


    Lawyers agree

    Answered . To the extent that the 401k accumulated during the course of the marriage, it would be subject to equitable distribution. This starts from a 50/50 presumption of division as to marital assets (the 401k) and debts. However, the trial court has discretion to make an uneven distribution. I would recommend contacting a seasoned family law attorney before proceeding. I do this type of work frequently and would love to help you or just answer questions. Bill Rosenfelt 407-462-8787

    Please be advised that any answers or information disseminated above do not constitute legal advice and that the... more

Related Topics


Divorce is the process of formally ending a marriage. Divorces may be jointly agreed upon, resolved by negotiation, or decided in court.

Dividing a 401(k) in a Divorce

A 401(k) retirement savings account, like other assets owned by a married couple, may be included in a division of property during divorce.

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