What Happens to a 401(k) in a Divorce?

If you’re going through the process of divorce and trying to figure out what might happen to your
401(k) account, don’t stress. We’re here to help you gain a better understanding of the 401(k)
division process. Let’s take a closer look at the rules and regulations surrounding your 401(k)
and divorce proceedings.

How do you split a 401(k) account?

Unless a prenuptial agreement is in place, funds placed into a 401(k) during marriage can be considered marital property. Any funds put into the account before marriage are separate property. This means that after placing funds into your account during marriage, your 401(k) can potentially be divided during a divorce.

However, your former spouse isn’t automatically guaranteed 50% of everything. The division process will ultimately depend on your state of residence, as each state has its own set of rules.

How does your state of residence affect your 401(k) division?

There are different laws that determine how your 401(k) will be divided. If you reside in an equitable division state, the court will consider factors such as the former spouse’s income, financial situation, and length of the marriage to make a decision. However, that decision may not equate to a 50/50 split.

If you reside in a community property state, any assets gained during the marriage are owned by both parties. In this case, the 401(k) would typically be split 50/50. A possible exception to this rule is if there is a prenuptial agreement that establishes each individual’s 401(k) account as separate property.

Can you and your ex-spouse come to an agreement on your own?

If you and your spouse agree to a fair asset split on your own, this could save you time and energy in court. However, if you decide to go down this path, you might consider working with a financial advisor to ensure you are both acting in your best interests, and you understand what goes into the division of your 401(k) account.

How is your 401(k) taxed after a divorce?

If your spouse, also known as the alternate payee, were to roll over funds from your 401(k) account into their own 401(k) or IRA, the rollover would be tax-free. Like other 401(k) accounts, they won’t have to pay taxes on the funds until the time they begin taking distributions from the plan.

If they choose not to rollover your 401(k) into their own account and take cash instead, they will have to pay taxes on the amount. However, anyone under the age of 59 ½ will be exempt from paying the normal 10% fee for early withdrawal.

Conclusion

Based on your state of residence, the division of your 401(k) account can vary. If you reside in a state that treats your 401(k) as marital property, you can expect an even split, however that may not be the case in states that recognize community property.