Brought 401k to marriage

[he left me]

What is the name of your state (only U.S. law)? MA My husband of 23 yrs decided he wants a divorce. I know we only have a house and our pension/401k's to decide upon splitting. I have received conflicting info regarding my 401K I brought into the marriage. Is stbx entitled to 1/2 my 401K or is he entitled to the % of change that has occurred to my 401K?:

[LdiJ]

Originally Posted by he left me

What is the name of your state (only U.S. law)? MA My husband of 23 yrs decided he wants a divorce. I know we only have a house and our pension/401k's to decide upon splitting. I have received conflicting info regarding my 401K I brought into the marriage. Is stbx entitled to 1/2 my 401K or is he entitled to the % of change that has occurred to my 401K?:

Did you add any money to that specific 401k during the marriage? If not, then its completely separate property. If you did add any money to that 401k during the marriage, then he is entitled to 1/2 of the value related to the money that you added during the marriage.

[he left me]

I did not add money to it. It was a rollover IRA when I left my career.

[mistoffolees]

Originally Posted by he left me

I did not add money to it. It was a rollover IRA when I left my career.

Do NOT add any more money to this 401K. If you want more retirement money, start a new IRA.

Also, I hope someone here will answer this for sure, but I suspect that any amount you withdraw from the IRA while married would be considered marital income (just like a paycheck that you earn) and possibly subject to division. I'm not sure though.

[Bali Hai]

Originally Posted by he left me

What is the name of your state (only U.S. law)? MA My husband of 23 yrs decided he wants a divorce. I know we only have a house and our pension/401k's to decide upon splitting. I have received conflicting info regarding my 401K I brought into the marriage. Is stbx entitled to 1/2 my 401K or is he entitled to the % of change that has occurred to my 401K?:

Who is the beneficiary you designated on the 401k in the envent of your death?

[LdiJ]

Originally Posted by mistoffolees

Do NOT add any more money to this 401K. If you want more retirement money, start a new IRA.

Also, I hope someone here will answer this for sure, but I suspect that any amount you withdraw from the IRA while married would be considered marital income (just like a paycheck that you earn) and possibly subject to division. I'm not sure though.

I disagree as long as it is kept separate and not comingled with other marital assets. If they were already retired and she was receiving regular periodic payments I might agree with you, but that is not the case.

[Bali Hai]

Originally Posted by LdiJ

I disagree as long as it is kept separate and not comingled with other marital assets. If they were already retired and she was receiving regular periodic payments I might agree with you, but that is not the case.

This was a marriage of long duration, I wouldn't be surprised to see the judge make a discretionary decision and award OP's ex 50% of the 401k account.

[LdiJ]

Originally Posted by Bali Hai

This was a marriage of long duration, I wouldn't be surprised to see the judge make a discretionary decision and award OP's ex 50% of the 401k account.

The judge cannot do that. Its premarital property. The judge has the discretion to make decisions regarding marital property, not premarital property. Since nothing was added to it during the marriage, its clearly premarital.

[Bali Hai]

Originally Posted by LdiJ

The judge cannot do that. Its premarital property. The judge has the discretion to make decisions regarding marital property, not premarital property. Since nothing was added to it during the marriage, its clearly premarital.

Judges can do anything they want, if you don't like it, appeal it!!

[mistoffolees]

Originally Posted by LdiJ

I disagree as long as it is kept separate and not comingled with other marital assets. If they were already retired and she was receiving regular periodic payments I might agree with you, but that is not the case.

Check the rules on marital income in MA. Essentially any income can be considered marital. Since IRA/401K distributions are deferred income, it could easily be considered marital income. Again, I don't know for sure, but it's unclear enough that I would not say it was definitely non-marital without talking with an attorney or accountant familiar with MA laws.

[he left me]

I will check with an attorney regarding this $. In response to Bali question, there is no beneficiary on this rollover because the bank looks at it as "an account" not a 401K. I won't be at a retirement age for another 15 yrs. So I won't be withdrawing from this account until then. Thanks for all your input.

[LdiJ]

Originally Posted by mistoffolees

Check the rules on marital income in MA. Essentially any income can be considered marital. Since IRA/401K distributions are deferred income, it could easily be considered marital income. Again, I don't know for sure, but it's unclear enough that I would not say it was definitely non-marital without talking with an attorney or accountant familiar with MA laws.

I see your point, but I think that the better advice is to NOT take any distributions until the property settlement has been finalized.