Divorce and 401K's

[Ladyhwk06]

What is the name of your state (only U.S. law)? California
I am confused, I am trying to fill out paperwork for a divorce, I am a 55 year old woman and the owner of a 401K. My husband has his own Military pension from which he is already drawing and I am not eligible for because we have only been married 5 years. Does he still have a right to half of my 401k when he already has his own pension?What is the name of your state (only U.S. law)?

[LdiJ]

Originally Posted by Ladyhwk06

What is the name of your state (only U.S. law)? California
I am confused, I am trying to fill out paperwork for a divorce, I am a 55 year old woman and the owner of a 401K. My husband has his own Military pension from which he is already drawing and I am not eligible for because we have only been married 5 years. Does he still have a right to half of my 401k when he already has his own pension?What is the name of your state (only U.S. law)?

Well, unless all of your 401k accrued during the marriage, then no, he would never be entitled to a full half. He would only be potentially entitled to 1/2 of the amount that accrued during the marriage. So, if your 401k had 70k in it when you got married, and you put 20k in it during the marriage, the most that he would be potentially entitled to is 10k.

You can certainly make the argument that since he has a military pension that he should not be entitled to any of your 401k. A judge may agree with you since he is fully covered for retirement.

However, whether or not you would be entitled to any of his military pension is not based on the fact that you have only been married 5 years (that's just means that the military wouldn't pay any of it to you directly). The more probable reason why you might not be entitled to any of it, is because it may have all been "earned" prior to the marriage. If he was still in the military during any part of your marriage, whatever portion of the pension that accrued during the marriage would still be a marital asset.

[Bali Hai]

Originally Posted by LdiJ

Well, unless all of your 401k accrued during the marriage, then no, he would never be entitled to a full half. He would only be potentially entitledto 1/2 of the amount that accrued during the marriage.

Not "potentially entitled" to half the amount that accrued during the marriage. His is ABSOLUTELY entitled to half tha amount that accrued during the marriage!!

So, if your 401k had 70k in it when you got married, and you put 20k in it during the marriage, the most that he would be potentially entitled to is 10k.

You can certainly make the argument that since he has a military pension that he should not be entitled to any of your 401k. A judge may agree with you since he is fully covered for retirement.

Bull crap! That won't fly in the Honorable Bali Hai's court!!

However, whether or not you would be entitled to any of his military pension is not based on the fact that you have only been married 5 years (that's just means that the military wouldn't pay any of it to you directly). The more probable reason why you might not be entitled to any of it, is because it may have all been "earned" prior to the marriage.

She already has stated that she is not entitled to ANY of the military pension and I'm SURE she has checked this fact out very thoroughly!

If he was still in the military during any part of your marriage, whatever portion of the pension that accrued during the marriage would still be a marital asset.

Paring down your weasel words, she gets NONE of his military retirement and he gets HALF of her 401k accrued during the marriage. The negotiations start from THAT point!!

[LdiJ]

Originally Posted by Bali Hai

Paring down your weasel words, she gets NONE of his military retirement and he gets HALF of her 401k accrued during the marriage. The negotiations start from THAT point!!

Bali, you need to preface your advice with the fact that its not legal advice, its advice according to how YOU want things to be. Not advice on how things really are.

[Ladyhwk06]

I was aware that I do not have any rights to my husbands military pension; I was also aware if push came to shove and he forced the issue, he could take half of my 401K which is all I have in this world. My question is whether or not a judge would award him half of my 401K (only 19K) given his military pension which just keeps on giving?

[Ohiogal]

Originally Posted by Ladyhwk06

I was aware that I do not have any rights to my husbands military pension; I was also aware if push came to shove and he forced the issue, he could take half of my 401K which is all I have in this world. My question is whether or not a judge would award him half of my 401K (only 19K) given his military pension which just keeps on giving?

Yes if it accrued during the marriage.

[mistoffolees]

Originally Posted by Ladyhwk06

I was aware that I do not have any rights to my husbands military pension; I was also aware if push came to shove and he forced the issue, he could take half of my 401K which is all I have in this world. My question is whether or not a judge would award him half of my 401K (only 19K) given his military pension which just keeps on giving?

Please re-read Ldij's advice. You are entitled to part of the military pension if it was earned during your marriage. You need to have been married for 10 years before the government would assign it to you, but you are certainly entitled to your share of marital assets - including the pension- even if you've been married less than that. By the same token, he is entitled to half of the marital value of your 401k.

If the pension value is similar to the 401k value, you may be able to just work out a swap - you don't take any of the pension and he doesn't take any of your 401k.

[MFinancier]

Originally Posted by Ladyhwk06

What is the name of your state (only U.S. law)? California
I am confused, I am trying to fill out paperwork for a divorce, I am a 55 year old woman and the owner of a 401K. My husband has his own Military pension from which he is already drawing and I am not eligible for because we have only been married 5 years. Does he still have a right to half of my 401k when he already has his own pension?What is the name of your state (only U.S. law)?

If you have only been married for 5 years and you are 55...you mean you just started contributing to your 401K at age 50? As has been pointed out...whatever you contiruted before you got married...and the appreciation of those contributions is NOT marital property. Otherwise...your out half of your 401K because it came from marital income

[Bali Hai]

Originally Posted by Ladyhwk06

I was aware that I do not have any rights to my husbands military pension; I was also aware if push came to shove and he forced the issue, he could take half of my 401K which is all I have in this world. My question is whether or not a judge would award him half of my 401K (only 19K) given his military pension which just keeps on giving?

I'll put it this way and this is legal advice that you can take to the bank:

He is entitled to half of your 401k account that accrued during the marriage. If the judge made the decision that he was not entitled to the 401k, you can bet that if it were me, that judge's boneheaded decision would very likely be overturned on APPEAL!!

[mistoffolees]

Originally Posted by Bali Hai

I'll put it this way and this is legal advice that you can take to the bank:

He is entitled to half of your 401k account that accrued during the marriage. If the judge made the decision that he was not entitled to the 401k, you can bet that if it were me, that judge's boneheaded decision would very likely be overturned on APPEAL!!

That's only half of the story. SHE is entitled to half of his military pension that accrues during the marriage. If the amounts are similar, a swap would be easier than trying to split both of them.

[Bali Hai]

Originally Posted by mistoffolees

That's only half of the story. SHE is entitled to half of his military pension that accrues during the marriage. If the amounts are similar, a swap would be easier than trying to split both of them.

She has stated TWICE that NONE of the military pension accrued during the marriage and therefore she is not entitled to the military pension! So stop with that already knucklehead and deal with the FACTS as they are and not what you want them to be!!

[LdiJ]

Originally Posted by Bali Hai

She has stated TWICE that NONE of the military pension accrued during the marriage and therefore she is not entitled to the military pension! So stop with that already knucklehead and deal with the FACTS as they are and not what you want them to be!!

Actually, she didn't say that. She said that she knew she wasn't eligible for it because they had only been married 5 years. Since she also hasn't stated how much of the 401k accrued during the marriage, we don't actually know WHAT the status of either item is.

If he is as old as she is, or older, odds are that none of the pension accrued during the marriage. However, if he is not, or he enlisted after college, and was a 30 year man, its possible that some of it accrued during the marriage. Not a ton of it, but some.

[nextwife]

Originally Posted by MFinancier

If you have only been married for 5 years and you are 55...you mean you just started contributing to your 401K at age 50? As has been pointed out...whatever you contiruted before you got married...and the appreciation of those contributions is NOT marital property. Otherwise...your out half of your 401K because it came from marital income

If, in fact, you went all the way to age 50 before starting to contribute to a 401K, that surely is not HIS fault.

You are each entitled to share half the marital debt, maritally accrued assets, and maritally accrued retirement. Just as you are not entitled to half of what he accrued PRE-maritally, he is NOT entitled to half of whatever YOU accrued PRE-maritally.

[mistoffolees]

Originally Posted by Bali Hai

She has stated TWICE that NONE of the military pension accrued during the marriage and therefore she is not entitled to the military pension!!

You really should work on your reading skills. She never said that none of the pension accrued during the marriage. She said that she didn't think she was entitled to any of it because they had only been married for 5 years - which is an incorrect interpretation of the military's 10 year pension rule.

[Bali Hai]

Originally Posted by mistoffolees

You really should work on your reading skills. She never said that none of the pension accrued during the marriage. She said that she didn't think she was entitled to any of it because they had only been married for 5 years - which is an incorrect interpretation of the military's 10 year pension rule.

She stated not once but TWICE that she KNOWS she IS NOT entitled to the military pension.

If anyone responding to this thread has reading comprehension issues, it's YOU!!