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Can you keep your full 401k in your divorce?

On Behalf of | Nov 5, 2019 | Family Law

Your divorce proceedings in Anchorage are sure to be a challenge. Even if you and your soon-to-be ex-spouse go into them having gotten over any bitterness associated with your separation, there will almost certainly be points where the two of you disagree. Both of you being willing to make concessions is the key to ensuring that your proceedings move smoothly and avoid costly delays. Yet one area where you may not be prepared to concede anything is in the division of your 401k.

Contributions made to your 401k during your marriage come from marital income. Thus, while its full value may not be subject to property division, the total amount of those contributions is. Your ex-spouse can take their portion and roll it over into their own retirement account, or they can elect to cash it out and gain access to the funds right now (divorce is one of the few situations where this is allowed without incurring an early withdrawal penalty).

Yet what if you want to keep the full value of your 401k? Your retirement plans are no doubt based on what you have been contributing thus far, and having to split a portion with your ex-spouse will no doubt impact them. The 401k Help Center suggests that you can propose to keep the full value of your 401k in your divorce by relinquishing your claim to another marital asset.

Keep in mind, however, that the asset you give up must be comparable to what your spouse is relinquishing. The court values this concession on the estimated value of your 401k once you reach retirement (not its current value). This means that you could be giving up more than you are anticipating.