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Is my 401(k) a Marital Asset?
Is my 401(k) a Marital Asset?

Divorce will make you worry about a lot of things.

How are the kids going to handle Daddy or Mommy moving out? Heck, where am I going to live?

And that’s when things take a turn down the financial path. You start to worry about the future you built through hard work and prudent investments, most notably your 401(k) retirement account.

While it may not seem completely fair, Florida law requires the 401(k) account to be included in the marital assets that will be doled out under the principle of equitable distribution.

The good news, however, is that the law treats it like any other asset. That means it can be protected through a pre- or post-nuptial agreement in which you name the 401(k) account to be your separate asset and not a part of the marital property. So long as the court finds the agreement to be legal and effective, whatever is written in that agreement will be honored in the event of a divorce.

If it’s already too late for forward-looking protection, all hope is not lost in terms of your retirement savings. However, without an agreement in place ahead of time, it will likely cost you something somewhere else—maybe a part of the value of the house—in order to secure that money you worked hard to stash away.

The last option for the distribution rests with the court. The judge will look at all the assets and apply the equitable distribution doctrine to split everything up. You may, however, be able to argue that a certain value of the account should be determined to be separate property under Florida Statue §61.075(6).

According to the Florida Bar Association, any assets that are acquired before the marriage will be considered to be separate from the marital assets. Therefore, if you had $10,000 in your 401(k) prior to your marriage, you could argue to the court that it shouldn’t be a part of any divorce distribution.

Don’t forget: Any time you leave something up to the discretion of the court, you’re effectively taking the control out of your hands. The best way to be certain of the best path forwar whether you are preparing for marriage or divorce is to consult with a family law attorney.

The Men’s Divorce Law Firm has the professional advice and counsel you need to keep your future out of harm’s way no matter the situation. We will work hard to ensure the result of your hard work isn’t taken from you. Contact us today to set up a consultation.