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I have been married for less than 10 years to my husband am I eligible to get part of his 401k.

Webster, NY |

i was informed that if i was married less than 10 years i would not be eligible to get any of his 401k or retirement cause in NY state you have to be married for at least 10 years is this true. I have moved out of the house and do not pay for anypart of the mortgage or bills am I legally responsible for those bills as well? Can he come after me to pay half the bills even thoug I left the home

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Attorney answers 2


In NYS marital distribution is based on equity NOT a community property state where all of the divisons are 50-50. Consideration of what is divided is according to several factors: age of marriage, whether or not there are minor children, income, education, job etc etc. I strongly urge you to discuss your case with an experienced family lawyer. Both parties are responsible for marital debts including mortgage and upkeep of the house.

On my profile there are several legal guides. I recommend reviewing the following which may be helpful to you:

Hiring a lawyer; Is it Legal? Is it Illegal?...Understanding the different court systems;
Introduction to Legal terms used in litigation; Limitations on a Lawyer’s License: What a Lawyer Can and Cannot Do……………………………..…………………………..

Divorce in General and How It's Handled in New Jersey (Much of this is also valid for NYS).
Financial Dos and Don'ts after a Divorce (written by Attorney Gabriel Cheong)

LEGAL DISCLAIMER…………………………………………………………………..
Mr. Sarno is licensed to practice law in NJ and NY. His response here is not legal advice and does not create an attorney/ client relationship. The response is in the form of legal education and is intended to provide general information about the matter in question. Many times the questioner may leave out details which would make the reply unsuitable. Mr. Sarno strongly advises the questioner to confer with an attorney in their own state to acquire more information about this issue.


I recognize that the above posting does everything but answer your question, and that the last thing anyone wants is to be told to go read someone's idea of a legal guide. So, let's get to the facts:

It is not correct that you have to be married for more than ten years to be eligible for part of a pension plan or 401k. Under New York's equitable distribution law, with very limited exceptions, anything of value received during the marriage is marital property. What that means to you is that if your spouse received or accrued pension or 401k benefits during the marriage, you are presumed to share in those benefits, in an "equitable" amount. What is equitable under your particular circumstances is something you should discuss with an attorney who does matrimonial work.

What bills you may be responsible for is also a subject for discussion. If you are a co-signor on a loan or share in a credit card, you may be responsible for a share of debts or bills. However, there are exceptions and, more importantly, ways to limit that exposure.

You should consult with an attorney to discuss your case. The cost of the consultation is almost invariably less than the cost of making a mistake.

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