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Can I keep my 401K?

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


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.

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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 attorney responsible for this posting is merely attempting to participate in a Q & A session intended to be helpful but certainly not intended to be legal advice. It is important that you understand that no attorney-client relationship has been formed and that the attorney has no obligation to follow up with you with your legal issue unless you separately contact said attorney and arrange for him to legally represent you.

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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

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