Ask A Lawyer: Can I Stop My Wife From Taking Half Of My 401K?

Question:

Is there anyway to stop my wife from getting half of my 401K and pension?

 

 

 

 

 

Answer:

If the 401(k) and pension were contributed to and accumulated during the marriage, then they will be considered martial property to be divided between the parties.  She is entitled to receive half of that property, and likewise, you are entitled to receive half of her retirement accounts.  One way to circumvent this division is to negotiate a distribution of other marital property to give her replacement value for her half of the retirement.  For instance, if your retirement accounts are valued at $100,000.00, you are each entitled to receive $50,000.00.  If you have $150,000 of equity in the house, you are also each entitled to receive $75,000.00 of that equity.  Instead of your wife getting $50,000 from your retirement, you can propose giving her $125,000 of equity in the house and you taking $25,000.00 from the equity.  Then you each would have $125,000.00 of assets, which is half of the total martial assets of $250,000.00.  Note that these assets are treated differently in regard to taxation, so consult with your attorney or a tax advisor about your assets before making a proposal such as the one describe above. 

 

Claudia J. Weaver is an Associate Attorney with Cordell & Cordell, P.C., in Overland Park, Kansas. Ms. Weaver practices exclusively in the area of domestic relations.

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