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Can my wife and I agree on a settlement regarding my 401k or will the court make us split it?

Oviedo, FL |

My wife and I have agreed for me to pay her a specific amount from my 401k. Once this is done, do I need to do anything to protect the remaining balance? Will (or can) a judge force me to divide what is remaining?

Attorney Answers 5


  1. Best answer

    In Florida, with the exception of child support, everything is negotiable. You are free to make as good or bad of a deal as you like. Your 401(k) can be split up anyways that you want as long as you both agree and are willing to sign a marital settlement agreement including this distribution. However, I would caution you, as I did in the previous post, about making sure to hire an attorney as it will invariably save you money in the long run if you have significant assets. Good luck!

    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.


  2. No, the judge will not force you to split it equally. Whatever you and your wife agree to will be in the marital settlement agreement. It will then be signed by the judge and binding on both of you. I suggest you find an attorney in your area to help draft the MSA to make sure it is done properly. Good luck!

    My preliminary answer to your question is based on the limited information you have provided and should be used as guidance not legal advice. My response does NOT create an attorney-client relationship.


  3. If you and your wife agree to an amount it can be reduced to writing in a settlement agreement and enforced by the court.

    I would recommend consulting with an attorney in your area to discuss further. Many great attorneys can be found here on Avvo and offer free consultations, myself included.

    /s/ Ophelia Bernal-Mora, Esquire
    Law Office of Ophelia Bernal-Mora, P.A.
    37 N. Orange Avenue, Suite 500
    Orlando, FL 32801
    PH: (407) 354-5223
    Email: info@obmlegal.com
    Website: www.obmlegal.com

    You should consult an attorney for advice regarding your individual situation since every case is different and not all information is relayed in an online question. The Law Office of Ophelia Bernal-Mora, P.A. is a family & criminal law firm located in Orlando, Florida, we invite you to contact us and welcome your calls at 407-354-5223. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established.


  4. You and your wife can agree to split (or not to split) any asset you wish in any percentage that you and she agree to. If it is left to a court, the court will first have to determine whether the 401K was earned during the marriage. If so, they can deem it a "marital asset". Then the court will make a determination as to what percentage (if any) should go to each party. equitable distribution can be tricky as there are many different scenarios that I cannot cover based upon the facts in your question alone. 407-521-7171.


  5. Generally, no. Agreements you make with your wife are encouraged by the Court and usually enforced. Once you get her signature on it, she probably cannot change her mind (nor can you -- so be careful!).

    Not legal advice -- general information only.

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