Filing for divorce
is undoubtedly one of the most stressful situations you can go through.
It is both emotionally
financially taxing. As you navigate the many challenges of your divorce
proceedings, you may be wondering how the divorce could affect your hard-earned
assets, such as your 401(k) or retirement plan. You might also be wondering
whether you are entitled to any of your spouse’s retirement benefits.
We can help answer all these questions and more. Read on, and don’t
wait to contact a Bronx divorce attorney at our office for one-on-one
Protecting Your Retirement Benefits
Any pension plan that you have contributed to during your marriage is considered
to be a marital asset. This means your 401(k) benefits are subject to
equitable distribution if you get a divorce.
It is extremely important to carefully calculate the value of any and all
retirement accounts you have. Our Bronx divorce lawyer can help you obtain
summary plan descriptions for any employer-sponsored retirement accounts,
as well as the balances of all other retirement plans.
On top of calculating the current value of these plans, you will want to
determine how much of that total is separate property and how much is
marital property. Any contributions made before you got married are considered
separate property and will not be subject to division. Having a lawyer
on your side during this process can help protect your benefits and ensure
your spouse is not given more than he or she is legally entitled to.
Obtaining Your Share of Your Spouse’s Retirement Plan
New York is an equitable distribution state, meaning that marital property
is distributed equitably but not necessarily equally. In other words,
a judge will award you the amount he or she believes you are entitled
to based on your contributions during the marriage, rather than just splitting
the property 50/50.
That said, you have a legal right to marital property, which includes your
spouse’s 401(k) plan and other retirement accounts if he or she
contributed to them while you were married.
Once a 401(k) has been legally split, you will have a say in how you collect
You may choose to:
- Transfer the proceeds into your own retirement plan
- Leave your share in your spouse’s existing plan and obtain the payments
when he/she retires
- Take the money up front as a cash payment
Other types of retirement plans can be divided and accessed in a variety
of ways. For example, all contributions to a Roth IRA account while you
were married will generally be split in half between yourself and your
spouse unless you agree on a different division agreement. A divorce attorney
can help you determine what percentage of a retirement account you should
be entitled to and fight to ensure you receive that amount.
Have more questions about divorce and your 401(k) or retirement plan?
Contact The Law Firm of Wayne F. Crowe, Jr., P.C. at (347) 343-5467.