Need Advice (Divorce and 401K)

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  • 2 Post By spiderlashes5000
  • 2 Post By RedCatWaves
  • 2 Post By goldencurly

As some of you know, my husband and I are getting a divorce, and we have begun preliminary discussions regarding division of assets.

Our divorce should not be very complicated, as we do not have children and there won't be alimony or anything like that involved. We are also on good terms, so have decided to go to a mediator to help with the divorce.

However, I have been struggling with how to handle the 401Ks. A few weeks ago we talked a little about this and my husband's view was that I have not contributed to his 401K and he has not contributed to mine, so he would keep his and I would keep mine and that would be that. I have spent a great deal of time thinking about (actually, agonizing about) this and am not comfortable with his view. To me our 401Ks are marital property subject to equitable division just like everything else acquired during the marriage.

I worry about being seen as greedy because since he makes more than me and always has made more, I know he has far more in his 401K than I do. But there have been times when we both reduced our 401K contribution amounts in order to achieve a goal, for example, when we were saving up a down payment to buy our house. Obviously me being the lesser paid was hurt more by this than him. Also he has received stock options from his company as bonuses, whereas my bonuses have been cash, which has gone straight to the joint account for us both to use.

On the other hand, a 401K is not cash that can be used until retirement without penalty. So, if equitable division meant me getting more of our cash assets, is that fair to him?

I have a tendency to want to please, but I know I need to be looking out for myself. I'm really struggling with this, maybe more than I should be.

I really didn't mean for this to be so long.
Formerly ladyjag123
Legally, it's community property (assuming you live in a community property state) so you have every right to go after half the total accumulated since you got married.

I really think this is something you should discuss with the mediator. IMHO, it depends on how you supported each other and contributed to the household during your marriage. Did you commingle everything? Does he make so much more because you supported his education? Do you make less because you made your career secondary to his? Did you make a decision to put more money in his 401-k and less in yours because of the matching or vesting schedule? There are just so many factors that play into it for me.

FWIW, my sister had a similar issue when she got divorced. However, she was the one who made more money and had more money in her retirement. She had also supported her husband while he was in college and paid money toward his college tuition, while hers was already paid for by the time they got married. He let her keep her entire retirement account, which he really didn't have to do. It was the right thing to do, though.
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It might be different in different states but my bf worked in fl and ga and got divorced in fl and there is no disputing that his ex wife is entitled to half his 401k. He was sorta bitter about it because she didn't want him to contribute so much to it either.

I understand you don't want to be seen as greedy but from what youve said, I don't think it's unreasonable to ask.
Excuse my cynicism here...bc I'm going thru something similar but on the opposite side...but do you really, really, really think that if the situation were reversed he wouldn't go after every penny of yours?

Wrong answer. He would!

Ultimately it's your choice, tho. You have to follow your conscience.
Amneris and curlypearl like this.
3b (with 3c tendencies) on modified CG

Go after it. Marriage is a 50/50 partnership, regardless of who earns more. It's your money.
Amneris and abstractcurls like this.
Go after it. Marriage is a 50/50 partnership, regardless of who earns more. It's your money.
Originally Posted by RedCatWaves
I agree.
I worry about being seen as greedy because since he makes more than me and always has made more, I know he has far more in his 401K than I do. But there have been times when we both reduced our 401K contribution amounts in order to achieve a goal, for example, when we were saving up a down payment to buy our house. Obviously me being the lesser paid was hurt more by this than him. Also he has received stock options from his company as bonuses, whereas my bonuses have been cash, which has gone straight to the joint account for us both to use.

On the other hand, a 401K is not cash that can be used until retirement without penalty. So, if equitable division meant me getting more of our cash assets, is that fair to him?
Originally Posted by wanderlust


Just explain to him (and the mediator) exactly like you explained it to us. If he is a decent human, he will see your point and split it equitably with you. There are ways to do it without incurring penalties. You may need an actuary to figure out what the value is and how it should be split, but then you can just "roll" your portion into your account without penalties.

If he doesn't agree, then you know he's being an ashole, and can proceed accordingly.
Thanks y'all - I appreciate everyone's advice!

SL, I was thinking about what if I were the one with more money in my 401K, but more from the standpoint of how would I feel if he wanted half. I would like to think that I would want things to be fair and equitable and not want anyone to feel taken advantage of.

He had expressed that he felt we could handle this on our own without the help of a mediator, but I don't think that would be a good idea. I would feel much more comfortable with some guidance on how to handle issues like this.

RCW, that's exactly what I want - if we can make this work without getting hit with penalties, that would be great.

This whole experience has been very stressful. Thanks again for all of your help and support!
Formerly ladyjag123
Definitely get a mediator. Women are frequently taught in subtle ways that it's not "ladylike" or "nice" to be " "greedy."

I agree with Spiderlashes that if the situation were reversed he wouldn't hesitate asking for a 50/50 split.
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Last edited by curlypearl; 03-07-2013 at 07:00 PM.
I totally agree that you are entitled to part of his account. Be prepared for him to be annoyed at best. Hold your ground. Hugs.

Here's an article that explains the 401k split:

How Is a 401(k) Split in a Divorce? | LegalZoom: Legal Info
It doesn't matter whose name it's in; it is marrital property that gets split 50/50.

Look at it this way. If he'd been saving that money for only himself all along and you two stayed together through retirement do you really think you'd only spend yours and he'd only spend his? Nope. That's not what it was intended for nor how it should be handled now.

You combine the totals in both accounts and split the dollar amount 50/50. You have less in your account, so he gives you half of the combined total. Or if he wants to be a prick, you split both accounts 50/50 with you paying him half of yours and him paying you half of his.

All property obtained during marriage is to be split equally: value in the home, vehicles, any cash accounts, savings accounts, investments. The only thing that is truely 100% his to keep without sharing is his wedding ring. Just like your wedding and engagement ring are yours totally. You each "earned" your own by going through with the wedding.

Do not play the "I must act lady-like" card. Take care of yourself because no one else will. It's not greed. Not at all.
multicultcurly and Amneris like this.
All property obtained during marriage is to be split equally: value in the home, vehicles, any cash accounts, savings accounts, investments. The only thing that is truely 100% his to keep without sharing is his wedding ring. Just like your wedding and engagement ring are yours totally. You each "earned" your own by going through with the wedding.
Originally Posted by goldencurly


That's not exactly true. Another thing that can be deemed 100% belonging to either party is inheritance. Inheritance laws are very old, and are treated almost like "dowries", and most states respect them. So if one party received an inheritance during the marriage, they may have chosen to share with the other party, but maybe be able to reclaim any and all of that inheritance upon divorce.
Not trying to start any ish, but whose idea exactly was it to forego counsel and mediation? Did he suggest this? Are you sure there aren't other assets, in which you can claim a marital interest, that you might not know about?

If the monetary difference is significant, would you consider getting an attorney?
3b (with 3c tendencies) on modified CG

All property obtained during marriage is to be split equally: value in the home, vehicles, any cash accounts, savings accounts, investments. The only thing that is truely 100% his to keep without sharing is his wedding ring. Just like your wedding and engagement ring are yours totally. You each "earned" your own by going through with the wedding.
Originally Posted by goldencurly


That's not exactly true. Another thing that can be deemed 100% belonging to either party is inheritance. Inheritance laws are very old, and are treated almost like "dowries", and most states respect them. So if one party received an inheritance during the marriage, they may have chosen to share with the other party, but maybe be able to reclaim any and all of that inheritance upon divorce.
Originally Posted by RedCatWaves
Good to know!
If you have been married for a considerable length of time and there is a large difference in the amounts of your 401k's, I would suggest going for half. Of course, that would mean him going for half of yours or your reducing the percentage of his you receive. If you haven't been married long and the difference isn't considerable, I would possibly ask for compensation in the way of more equity from the house or something like that. Regardless, I would get a good lawyer who can recommend the best path for you to take.
3b/c
Ugh.

I feel so annoyed right now. I told him I did not feel comfortable proceeding without a mediator but now he wants to choose a different mediator than the one we are already using. We had already had an appointment with a mediator, and now in the middle of the game he wants to change it Part of me knows I need to calm down because this is a knee-jerk reaction - you see, he often insists on things being done a certain way and then me, like a lemming, just go along with it so I want to push back on this.

Also, we showed each other what's in our retirement accounts a few days ago, along with what was contributed pre-marriage. His idea was that I would get half of the difference because the taxes would be approximately 50% upon withdrawal(we would not actually withdraw from the account; that amount would be offset by other assets), which made sense to me, but I told him I would like to talk with an expert about options. He kept trying to get me to go along with this as a way to discourage me from wanting to still have a mediator, but I continued to stand my ground that I want to seek guidance on asset division.

I'll be so effing glad when this is over.
Formerly ladyjag123
Stand your ground. Don't just go along with what he says, because he actually seems like he is trying to cheat you...well, he wants what's best for him anyway. You need an expert to look at those 401Ks, an actuary. Really.

Don't expect the divorce process to go perfectly. There's a reason why you're getting divorced...
Stand your ground. Don't just go along with what he says, because he actually seems like he is trying to cheat you...well, he wants what's best for him anyway. You need an expert to look at those 401Ks, an actuary. Really.

Don't expect the divorce process to go perfectly. There's a reason why you're getting divorced...
Originally Posted by RedCatWaves
RCW, thanks so much for the encouragement.
Formerly ladyjag123
I have been on the other side of the 401K issue where I made more than my husband. He didn't attempt to take any of it although we did discuss it. As you mentioned if you cash in your 401k both of you will loose a large percentage for early withdrawal. You can maybe try to work something out where you can recoup something by having him pay you directly or you take more in the sale of the house or something like that. Good luck with everything!
Just an FYI (non-legal advice from an attorney) - there are less than 10 true "community property" states, so all of this talk about community property may not apply. That said, it doesn't necessarily mean that you aren't entitled to half. It will just depend on your state's laws.

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