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Will I lose my 401k in a divorce?

Boston, MA |
Attorney answers 5


If the 401K was earned prior to the marriage then will probably be able to keep it, however, there are many other factors to consider in the division of marital assets.

Confer with a domestic relations attorney.

This is not legal advice and is not intended to create an attorney-client relationship. You should speak to an attorney for further information.


Likely, but not a guarantee, depending on the particular facts of your marriage.

To questioners from West Virginia & New York: Although I am licensed to practice in your state, I practice on a day-to-day basis in Massachusetts. I answer questions in your state in areas of the law in which I practice, and in which I feel comfortable trying to offer you assistance based on my knowledge of specific statutes in your state and/or general principles applicable in all states. It is always best, however, to work with attorneys and court personnel in your own area to deal with specific problems and factual situations.


It certainly is a possibility. Did the entirety of the 401(K) accrue before the marriage? I would make an assumption that at least a portion of the 401(K) accrued while you married, but if this is not the case, you certainly have a better leg to stand on in arguing against any division of this asset. Of course, a divorce attorney would need to know many more facts about your marriage, debts, and assets before giving you a more reliable answer.

I wish you luck.

Anthony Rao

The above response is NOT legal advice, and is NOT intended to be legal advice. No Attorney-Client relationship is created through the above answer, and any communication between us is not protected by attorney-client privilege.


Each divorce case is unique, and it very much depends on certain facts as pertains to the specifics of your marriage, including: length of marriage, contributions by each party to the marriage, what other spouse did for work during the marriage, educational backgrounds on each spouse, ability of each spouse to earn and acquire assets after divorce, whether children are involved, and whether they are emancipated or not, and many other factors.

There certainly is the distinct possibility that you may have to divide and share your 401(K) with your spouse as a consequence of divorce, and it is in your best interests to consult an experienced family law attorney to determine what your options are given the specifics of your unique circumstances. It is worth every penny. And, remember, the advice given by any lawyer is only as good as the information the client provides to that lawyer – if you fail to fully disclose all facts (good, bad and indifferent), you will not receive the best legal advice. Be honest with any lawyer, and leave nothing out – if you do not, no lawyer will be able to help you, because, rest assured, your spouse knows everything…. (reminds me of that horse race video a few years ago –“The Wife Nose Everything” and “The Wife Doesn’t Know”)

Best wishes!

No attorney-client relatonship is created in responding to this question, and advice provided is based solely on very limited facts presented, and therefore may not be correct.


All property is considered to be property of the marriage. This is why folks will sometimes execute a prenuptial agreement to protect property or assets that they wish to remain their separate or individual property. Your 401(k) will simply be part of the marital estate, which will be divided fairly by a judge (or by your agreement with your spouse) according to the specifics of your relationship, i.e. length of marriage, age of parties, education of parties, employment, etc.

Your best bet is to retain counsel as you prepare for divorce.

Christopher Vaughn-Martel is a Massachusetts lawyer with the firm of Vaughn-Martel Law in Boston, Massachusetts. All answers are based on generalized Massachusetts law and the limited facts presented by the questioner. All answers are provided to the general public for educational purposes only and no attorney-client relationship is formed by providing an answer to a question. If you would like an attorney with Vaughn-Martel Law to review your specific situation and provide you with legal options or information specific to you, you may schedule a telephone or office by calling 617-357-4898 or visiting us at Our office charges $100.00 for a consultation, and applies your consultation fee to your first bill if the Firm is hired to perform further work.

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