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How will a divorce affect my 401(k)?

Individuals seeking a divorce tend to have a lot of questions about what happens to their property: who gets what, and how is the property divided equitably?

This may be of particular concern to those with a 401(k). How will retirement savings be affected in divorce proceedings?

Marital property divided equitably

In Tennessee, this depends on when you invested the money. All property acquired by a couple during their marriage is defined as “marital property” and becomes subject to division. The divorce court judge will base his or her decision on a number of factors, taking “equitable distribution” into account. This distribution is not always an even 50/50 – it takes into account each spouse’s needs and means.

If your ex-spouse does not have a retirement savings account and you do, that may be considered marital property that needs to be distributed equitably.

What if my 401(k) was opened before the marriage?

However, if you are able to prove the money in the 401(k) was invested before the marriage began, those funds will not be considered. Any property owned by a spouse prior to a marriage is not considered marital.

If you have a 401(k) that you haven’t contributed to since the marriage began, that is entirely yours. If you have a 401(k) account you contributed to partially during the marriage and partially before, those funds could potentially be divided and considered separately during divorce proceedings.

To help determine what will happen to your 401(k) in a divorce, work with an experienced divorce attorney to review your options. A professional can look at the unique circumstances of your retirement savings accounts, you and your ex-spouse’s needs and how those funds can be divided if necessary.

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