Is My 401(k) Divisible During Divorce?

retirement planningQuestion:

I was contributing to a 401(k) prior to marrying my wife. Now it looks like we’re heading towards divorce.

Is my 401(k) divisible during divorce? I stopped contributing to before our marriage was official.


While I am not licensed to practice law in your state and cannot give you legal advice, I can give some general observations on this issue based on the jurisdiction where I practice.

Where I do practice in Pennsylvania, marital property, including retirement accounts and investment accounts, is typically identified as that which is attained after the date of marriage and before a date of separation.

Pennsylvania divorce attorney William Phelan
Cordell & Cordell Pennsylvania divorce attorney William Phelan, IV

More often than not, if property is accrued before the marriage, it can remain the sole property of the person who brought it into the marriage.

Pennsylvania courts, however, will consider sole property to be marital if it is later comingled with marital property. Additionally, if sole property increases in value during the marriage (e.g., stock market increases the value of a 401(k) balance or real property appreciates in value), then that increase in value can be deemed marital property and thus up for division between the spouses.

Due to the extremely sensitive and fact-specific nature of this situation, I would strongly suggest you contact an attorney who handles family law matters in your jurisdiction, such as Cordell & Cordell, to see how your state’s laws can help you with this serious situation.

Remember, I am unable to provide you with anything more than divorce tips, so please consult a domestic litigation attorney in your jurisdiction to obtain specific advice as to the laws in Vermont and how they impact your potential case.

To arrange an initial consultation to discuss divorce rights for men with a Cordell & Cordell attorney, including Pennsylvania divorce lawyer William J. Phelan, IV, contact Cordell & Cordell.

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