The 401K is in my name only and was opened by my employer in 2002. My spouse and I were married in 2007. We separated in Fall 2011.
My spouse never contributed financially toward the balance of the 401K and my spouse is claiming half of the 401K since 2002. How is the division of this during a divorce handled by Virginia state law?
Family Law Attorney
How the asset is titled is not determinative of whether it is a marital asset. As a very basic, brief overview: martial property is property/assets acquired during the marriage with marital assets, marital money, and/or marital efforts (meaning that one or both spouses contributed time and energy during the marriage to acquire, improve, increase, or actively manage the asset).
Martial assets in Virginia are divided equitably, which essentially means as is fair under the circumstances of the particular case -- often times this will be a 50/50 division, but there is no entitlement to half under Virginia law nor any absolute guarantee that the judge won't award 100% of the marital assets to one spouse (in certain more extreme cases).
So the short answer to your question is that your spouse may be awarded no less than 0% of your 401K and no more than 100% of the marital portion of your 401K. In most circumstances, the marital share would be that portion of the 401K that is traceable to contributions made by you and/or your employer from the date of marriage until the date of separation. The portion attributtable to your pre-marital contributions would be your separate property, as would your post-separation separate contributions. Determining which portion is which can be tricky and would be complicated by taking money out of the fund during the marriage and other factors.
This response does not create an attorney-client relationship and is intended for general information purposes only.
Divorce / Separation Lawyer
Any account which was established prior to your marriage, which existed as of the day immediately preceding your marriage and the value of which you can prove to the Court, is a separate account based on the fact pattern noted above.
HOWEVER, for all contributions made as of and after the date of your marriage, IF those contributions came from your earnings/employment, since the nature of your earnings changed as of the date of your marriage from 'separate' to 'marital' you now have what's referred to as a mixed asset, part separate, and part marital.
Courts will often award 50% of the marital share of such an account, so for example, if you had $100,000.00 in the account on the day before your marriage, and then during the marriage you put in another $100,000.00, then spouse would only be entitled to demand from the Court no more than 50% of $100K, NOT the $200K (plus all related growth/decreases).
However, if you have a fault-basis for your divorce against your spouse, then it's possible the Court will order that your spouse gets less- the transfer vehicle for these is known as a QDRO (Qualified Domestic Relations Order) and you really need an attorney to write it for you.
Legal issues often depend on the specific facts in any given case or situation. Please do NOT utilize the information you receive as either a binding legal opinion in your case, nor presume that I am your counsel because I've answered a question you had. Any legal representation is accomplished by written contract ONLY, signed by each of us.
Divorce / Separation Lawyer
Specifially about your 401-K interest, this is governed by Va. Code 20-107.3(G)(1). Your spouse may not receive more than 50 % of the portion you earned from the date of marriage to the date of your last separation. That is the maximum, your spouse could be awarded less than 50% of the marital share. If your spouse earned retirement benefits during your marriage, your interest in those benefits can be traded for their interest in your 401-K.
This is for informational puposes only and is not contemplated to create an attorney-client relationship.. You should discuss this and all issues with an attorney of your choosing.