Will I Lose My Retirement or 401K During A Divorce?
This depends on the assets that are available in the case. It also depends on whether or not you had that retirement account prior to the marriage. If you owned that retirement account prior to the marriage, the balance in that account as of the date of the marriage is your separate property and is not subject to division. Where people run into difficulties is they have a really hard time proving what the balance was in that retirement account on the date of the marriage. Maybe they’ve rolled that account over several times, or where the account was is no longer in existence, that bank or fund is no longer available to you. It’s your duty to prove what the value was of that retirement account as of the date of marriage.
Otherwise, we look at how are we going to effectuate an equitable division of the marital estate, and sometimes, retirement accounts is a way that we can equalize the marital estate, and so, under those circumstances, you might lose a piece of your retirement account if that’s an asset that needs to be divided in order to make everybody whole. So, if you have concerns about your retirement account, I would say the first step is to figure out what the balance was in the account, the value as of the date of marriage, get those statements together, come in and see me, and we can talk about what you can do in terms of a division of property in your case.