Question:

My wife and I have just started the divorce process, and I have a question about dividing property

How do I protect my 401k and pension during my divorce? Is it also 50 / 50?

These are the most important assets to me since I have worked hard to save for a comfortable retirement, and I want to know what I can do to avoid losing half of my retirement savings.

Answer:

In Virginia, where I practice, retirement plans are subject to equitable distribution in a divorce. However, the court will determine what the marital portion of your retirement account is.

Generally for 401(k)’s and other defined contribution accounts, the marital share is the difference between the value of the account on the date of marriage and the value of the account on the date of separation. The judge can then award your spouse up to 50 percent of the marital share of the account.

For example, if you had $50,000 in your 401(k) on your date of marriage and $100,000 in your 401(k) on your date of separation, $50,000 would be marital property and $50,000 would be your separate property.

Depending on various factors, the judge can then assign a percentage of the marital share to your wife.

As for the pension, it depends on what type you have. The marital share would be what benefits were earned during your marriage.

The division of a pension can be accomplished in a variety of ways, depending on the circumstances.

Remember, I am unable to provide you with anything more than tips on your situation, so please consult a domestic litigation attorney in your area to obtain specific advice as to the laws in your state and how they impact your potential case.

To arrange an initial consultation to discuss divorce rights for men with a Cordell & Cordell attorney in Virginia, contact Cordell & Cordell.