Skip to main content

My spouse and I are headed toward divorce but have not filed yet. Can my spouse 401k and saving plans be flagged now somehow

Rockaway, NJ |

My spouse may begin taking loans on 401k and saving plans to reduce amount before divorce

+ Read More

Attorney answers 5


If you are concerned about what your sp;ouse may be doing, you really need to take some concrete action ASAP.

You should meet with a Morris County Divorce Law Firm as soon as possible, to go over your situation in detail, get educated answers to your questions, and expert guidance as to the best course of action.

DISCLAIMER The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. We invite you to contact us and welcome your calls, letters and electronic mail. Please do not send any confidential information to us until such time as an attorney-client relationship has been established.


The only way to protect yourself is to take action. Once a Complaint for Divorce is filed you can secure an Order, either by consent or by application before the court, to preserve all marital assets, i.e. prevent him from liquidating any and all accounts.

F.Y.I. Even if your husband has begun to dissipate marital funds, provided there are other assets available, i.e. equity in a house; other bank or investments accounts, etc..., you will likely have an oppotunity to be made whole.

Kenneth A. White, Esq.

The Answer provided was based on the limited information provided, and represents information based on the law in general, not a legal opinion that can be relied upon. Before a formal legal opinion can be offered I would need an opportunity to review all possible relevant facts and circumstances. You cannot rely on the advice of an attorney given over the internet. The exact facts of your sitaution, including facts which you have not mentioned in your question, may completely change the opinion that is being offered. Please be aware that the above comments are neither protected by attorney-client privilege, nor may the same be the basis for a malpractice lawsuit.


When one borrows from a 401k fund, they must start repayments via payroll deduction, usually within 30 days. If you are able to see a breakdown of the investments in the 401k, you will notice the total amount of the account has not decreased, instead the loan amount is now listed as an investment. So taking the loan did not decrease the amount subject to equitable distribution in theory. This only applies to 401k accounts, pensions, seps, iras all work differently. You should consult with an attorney with experience in this area so that you make sure all of the marital assets are accounted for. good luck!

This answer is not intended to be legal advice, you should consult an attorney licensed in your jurisdiction.


You have no protection until there is a divorce case file. Once you get a divorce, you can seek in order preventing a dissipation of marital assets.

Here is an article that will help you prepare: Divorce planning: Uncovering hidden assets: .

Please mark as "Helpful" or "Best Answer" if our advice helped you. This information is based upon the limited facts you presented. My advice is based on New Jersey law and may be different if I find that the facts presented are different. Additionally, this answer does not contain any confidential information nor does it create any attorney/client relationship.


I have found that once I file a Complaint for Divorce, contacting the entity managing the 401k or other retirement asset and making them aware that the Complaint has been filed and making it plain that the asset is now frozen will generally act to prevent them from allowing the individual to dissipate the asset.

Can't find what you're looking for?

Post a free question on our public forum.

Ask a Question

- or -

Search for lawyers by reviews and ratings.

Find a Lawyer