401k and divorce

[189union]

What is the name of your state (only U.S. law)? New York

I have been married for 24 yrs and a week or so before Christmas I filed for a divorce. This is going to get ugly. He is a very angry, controlling and verbally abusive.

Before we got married I worked for a company that contributed to a 401k (?) for me. I do not believe I put any money into it. I stopped working for them shortly after we married. For the last 10 years I have worked for a new company where they match what I put in.

Is he entitled to half of the one that started before we were married? And is he entitled to 50% of what it was worth at the time of the marriage?

And is he entitled to 50% of the total of the second account or 50% of what I have put into it

 

[LdiJ]

What is the name of your state (only U.S. law)? New York

I have been married for 24 yrs and a week or so before Christmas I filed for a divorce. This is going to get ugly. He is a very angry, controlling and verbally abusive.

Before we got married I worked for a company that contributed to a 401k (?) for me. I do not believe I put any money into it. I stopped working for them shortly after we married. For the last 10 years I have worked for a new company where they match what I put in.

Is he entitled to half of the one that started before we were married? And is he entitled to 50% of what it was worth at the time of the marriage?

And is he entitled to 50% of the total of the second account or 50% of what I have put into it

He is entitled to 50% of whatever amounts of the 401ks that accrued DURING the marriage. He would not be entitled to any monies that accrued before your marriage.

Example:

Lets say that your previous 401k was worth 40k when you got married and you contributed 10k during the marriage. That 10k is 20% of the balance and 50% of that is 10%. So, he is entitled to 10% of that 401k. If you only contributed 1k during your marriage then he is only entitled to 1% of that 401k.

You are also entitled to 1/2 of any retirement funds that have accrued for him during the marriage as well.

 

[189union]

He is entitled to 50% of whatever amounts of the 401ks that accrued DURING the marriage. He would not be entitled to any monies that accrued before your marriage.

Example:

Lets say that your previous 401k was worth 40k when you got married and you contributed 10k during the marriage. That 10k is 20% of the balance and 50% of that is 10%. So, he is entitled to 10% of that 401k. If you only contributed 1k during your marriage then he is only entitled to 1% of that 401k.

You are also entitled to 1/2 of any retirement funds that have accrued for him during the marriage as well.

He has accrued nothing due to poor business ventures. The only reason there is anything to divide is because I would not allow him to touch my 401ks or our home.

The first 401k was all employer contribution. Is he entitled to any of that?

 

[cbg]

The ONLY thing he would be entitled to is 50% of anything that was gained AFTER the marriage. You said the first one was closed shortly after the marriage, correct? Then he would be entitled to nothing that was already in it before the marriage took place, and only 50% of anything that went into it afterward.

 

[189union]

The ONLY thing he would be entitled to is 50% of anything that was gained AFTER the marriage. You said the first one was closed shortly after the marriage, correct? Then he would be entitled to nothing that was already in it before the marriage took place, and only 50% of anything that went into it afterward.

Thank you for answering. So my employer contribution does count towards his 50% then?

 

[189union]

Thank you for answering. So my employer contribution does count towards his 50% then?

I was wrong it is a 401B I do not know if that makes a difference.

Also does the 50% go for stock that my company gives me annually?

 

[LdiJ]

Thank you for answering. So my employer contribution does count towards his 50% then?

How many times do you expect us to answer the same question? YES. However only 50% of the amount that the employer contributed AFTER you got married.

However, again, he is also entitled to the growth on that small portion, so you need to figure out what percentage that was of the whole at the time that you stopped working for that employer, and apply that same percentage to the account now.

That takes it back to my previous example. If there was 50k in the account when you stopped working there, and 10k of that was accrued during the marriage, his share equals 10% of the account, so he would be entitled to 10% of the account now. If the account lost money he would still only be entitled to 10%.

 

[justalayman]

Thank you for answering. So my employer contribution does count towards his 50% then?

in the first one: 50% of only what the employer put in during your marriage AND he would be entitled to 1/2 of the appreciation accrued during the marriage

in the one during the marriage; 50% of the total 401k account

 

[cbg]

Please relax.

He's not entitled to a single penny until a court says he does. But IF a court says he does, then the maximum under the law he can be granted is 50% of the contributions that were made during the marriage and the appropriate interest. This might or might include stock; might or might not include employer contributions. It can - it does not have to. It will be up to the judge what to grant him. But the judge CANNOT award him more than 50% of what was accrued DURING the marriage.

And there is no such thing as a 401(b). Do you mean a 403(b)? or a 401(a)?

Not that it matters, since the answer is the same for a 403(b), a 401(a) or a 401(k).

 

[189union]

Please relax.

He's not entitled to a single penny until a court says he does. But IF a court says he does, then the maximum under the law he can be granted is 50% of the contributions that were made during the marriage and the appropriate interest. This might or might include stock; might or might not include employer contributions. It can - it does not have to. It will be up to the judge what to grant him. But the judge CANNOT award him more than 50% of what was accrued DURING the marriage.

And there is no such thing as a 401(b). Do you mean a 403(b)? or a 401(a)?

Not that it matters, since the answer is the same for a 403(b), a 401(a) or a 401(k).

Thank you. Relaxing is not easy. He was served today and has been texting me all day about what he is going to take from me. Through his failed business ventures he has nothing left and to be spiteful I know he is going to try to rake me over the coals. Must be a 403b, sorry

 

[justalayman]

Please relax.

He's not entitled to a single penny until a court says he does. But IF a court says he does, then the maximum under the law he can be granted is 50% of the contributions that were made during the marriage and the appropriate interest. This might or might include stock; might or might not include employer contributions. It can - it does not have to. It will be up to the judge what to grant him. But the judge CANNOT award him more than 50% of what was accrued DURING the marriage.
.

and to add a bit more to that:


what he may be awarded is going to depend on a lot of factors. It is not possible to even guess to any real answer. If there are considerable other marital assets, the retirement accounts may be left untouched but you may have to give up a larger piece of the pie regarding some other asset.

you are so soon into the action, getting all worked up now is overreacting. You need to get set up with a lawyer (I would guess you already have one since filing pro se is not the best thing to do) who can walk you through this. Only after reviewing all of the marital assets AND DEBTS can anybody even start to determine the division of the assets.

 

[189union]

and to add a bit more to that:


what he may be awarded is going to depend on a lot of factors. It is not possible to even guess to any real answer. If there are considerable other marital assets, the retirement accounts may be left untouched but you may have to give up a larger piece of the pie regarding some other asset.

you are so soon into the action, getting all worked up now is overreacting. You need to get set up with a lawyer (I would guess you already have one since filing pro se is not the best thing to do) who can walk you through this. Only after reviewing all of the marital assets AND DEBTS can anybody even start to determine the division of the assets.

I am truthfully trying to relax. The only other asset we have left is our house. I do not want to come off as though I am trying to not give him anything BUT he has just about bankrupted us with his "business" which is now gone too. He drained our personal account to fund it. He cashed out any retirement accounts he had long ago. The only thing left is debt. Credit cards etc.

 

[LdiJ]

Thank you. Relaxing is not easy. He was served today and has been texting me all day about what he is going to take from me. Through his failed business ventures he has nothing left and to be spiteful I know he is going to try to rake me over the coals. Must be a 403b, sorry

Do not take legal advice from your spiteful, control freak, verbally abusive, soon to be ex husband. He can only rake you over the coals if you let him rake you over the coals.

There are people that just want things to be over so badly that they cave to a spiteful, control freak, verbally abusive ex and they ALWAYS regret it later. The only way that that he will ever get more than the law allows him to get is if you cave. You were strong enough during the marriage that you did not allow him to encumber your home or your retirement assets on his failed ventures. That means that you are strong enough to weather the divorce as well.

If the house was purchased during the marriage he is entitled to 50% of the equity only...not 50% of the value if there is still a mortgage on the home. He is entitled to 50% of the second retirement account. Use the examples/info we gave you to figure out what amount he might be entitled to on the first retirement account.

DO NOT cash out any money from those accounts in order to pay him his share. Let those accounts be divided under a QDRO (Qualified Domestic Relations Order). That divides the accounts into one for you and one for him. Then, if he decides to cash out his accounts he pays the tax instead of you paying the tax. DO NOT do that in advance of the divorce, do it as part of the divorce.

The only possible caution I could give you is that if he has someone who is willing to bankroll him for an attorney, and is willing to bankroll him ALOT for an attorney, then there could come a point where you both rack up so much in legal fees that it would eat up the assets. Then, you might want to consider caving a little...but only a little.

I am going to recommend that you try to get him to agree to get the house on the market ASAP. Or, in the alternative you start working on an immediate refinance into your name only so that you can buy out his share of the equity (the refinance would have to include enough money to buy out his share). That will put non-taxable money into his pocket and may make him more sensible.

 

[justalayman]

I am truthfully trying to relax. The only other asset we have left is our house. I do not want to come off as though I am trying to not give him anything BUT he has just about bankrupted us with his "business" which is now gone too. He drained our personal account to fund it. He cashed out any retirement accounts he had long ago. The only thing left is debt. Credit cards etc.

sounds like you waited too long to act. Given the time married I am not saying it was wrong to do so as we all never want to give up on something we have put so much effort into but, there does come a time when it's time to call it quits. Nobody wants to admit to failure and a divorce means the marriage failed.

Sounds like you simply were expecting him to change. He never did.


anyway, now you can move on without the anchor, at least once this is all settled.

 

[189union]

Do not take legal advice from your spiteful, control freak, verbally abusive, soon to be ex husband. He can only rake you over the coals if you let him rake you over the coals.

There are people that just want things to be over so badly that they cave to a spiteful, control freak, verbally abusive ex and they ALWAYS regret it later. The only way that that he will ever get more than the law allows him to get is if you cave. You were strong enough during the marriage that you did not allow him to encumber your home or your retirement assets on his failed ventures. That means that you are strong enough to weather the divorce as well.

If the house was purchased during the marriage he is entitled to 50% of the equity only...not 50% of the value if there is still a mortgage on the home. He is entitled to 50% of the second retirement account. Use the examples/info we gave you to figure out what amount he might be entitled to on the first retirement account.

DO NOT cash out any money from those accounts in order to pay him his share. Let those accounts be divided under a QDRO (Qualified Domestic Relations Order). That divides the accounts into one for you and one for him. Then, if he decides to cash out his accounts he pays the tax instead of you paying the tax. DO NOT do that in advance of the divorce, do it as part of the divorce.

The only possible caution I could give you is that if he has someone who is willing to bankroll him for an attorney, and is willing to bankroll him ALOT for an attorney, then there could come a point where you both rack up so much in legal fees that it would eat up the assets. Then, you might want to consider caving a little...but only a little.

I am going to recommend that you try to get him to agree to get the house on the market ASAP. Or, in the alternative you start working on an immediate refinance into your name only so that you can buy out his share of the equity (the refinance would have to include enough money to buy out his share). That will put non-taxable money into his pocket and may make him more sensible.

Thank you. these answers have helped me feel a little bit better. He has just done so much emotional damage at this point. He is however agreeable to putting the house on the market and selling.