Hartley Law Office, LLC

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Is a 401(k) considered separate property in a divorce?

Once the decision has been made to end a marriage, the next step is deciding who gets what. If you have been married for decades, this can be incredibly difficult since you have both contributed so much to the family life and finances. Even couples in Ohio who have only been married for a short time may find it difficult to split up the marital assets.


You may be surprised to find that a 401(k) account is actually joint property, according to Forbes, and should be divided between the two spouses. This will, of course, depend on what is written in your prenuptial agreement, but in most cases this money will be split between the two of you.


An important fact to understand is what is considered marital property and what is separate. Most things that either of you have accumulated while you were married are considered marital property. Separate property would include things such as an inheritance, property owned prior to marriage or gifts from third parties.


Many divorcing spouses try to hide assets during proceedings so they will not be required to share. You may have even been told by your ex-spouse that you are not entitled to any 401(k) funds, but this is not true. Even if your partner has not exercised his or her stock options yet, they can still be divided between the two of you, just like any other piece of property. This information is not intended as legal advice, but to educate readers about the need to consider a 401(k) as marital property during a divorce.


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