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Divorce, 401(k) division, what are my options/tax issues with this and buying a house, post-divorce?

Hereford, AZ |

In my divorce, there's going to be a split of both a pension and a 401(k). The pension division will be much more difficult than the division of the 401(k) and I'm trying to make some plans for post-divorce, when I move back to my hometown in Ohio. One of the things I'd like to do is to buy a house in my hometown. The values are very low and I could pay cash for one using either the buyout of the pension or the split of the 401(k). Since the pension buyout would be more difficult to do, given the STBE husband would have to come up with a large chunk of money to do it, which he doesn't have, I was considering using the 401(k) to pay cash for the house. What are the tax implications in all this? This wouldn't be my first time buying a house; we're filing Chap. 7 as part of the divorce.

Also, to get the entire 401(k) would mean cashing out more than I'd need for the house I'm looking at. Could I opt for a half-cash/half transfer to me in this, too?

Attorney Answers 2


  1. Best answer

    You have a lot going on and my initial concern is that you need to be careful not to convert exempt monies into non-exempt which you will lose in a bankruptcy. Second, you really need to consult with a divorce attorney to make sure you properly split the pension plan with a QDRO, or offset with other assets, if any. Otherwise, a distribution from a 401(k) is fully taxable as ordinary income, and there is an additional 10% early distribution if you are under age 59 1/2. Good luck.

    The above "answer" is for discussion purposes only and is neither intended as legal advice nor to create an attorney-client relationship. An attorney-client relationship is not created until after an in person consultation and I agree in writing to provide representation. I am licensed solely in the state of Arizona. You should consult with a knowledgeable attorney in your jurisdiction.


  2. You need to work with both a bankruptcy and divorce attorney on this issue. You could easily burn yourself on both the retirement plan side and the home acquisition if you are doing this yourself. That could be far, far more expensive for you than hiring counsel. If you already have counsel then I would suggest you direct these questions to your attorneys.

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