I think we are heading to divorce, and I assume I am going to need all the extra money I can to afford the best divorce lawyer. I was considering stopping my contributions to my 401k for the time being.
Should I stop putting money in my 401(k) account in order to free up additional cash and to keep my wife from getting an even larger share of my retirement account?
Since I am only licensed to practice law in Wisconsin, I can only provide you with general divorce help for men to your financial advice on divorce question.
Wisconsin is a marital property – or community property – state. After a couple gets married, all their income and assets become merged into one marital pot. You are entitled to 50% of your wife’s income and she is entitled to 50% of your income.
Likewise, you each own equal shares in each other’s assets. A retirement account, like a 401(k), is considered a marital asset and your wife is presumed to be entitled to 50% of the account’s value as of the date of divorce.
How Does Your State Divide Property:
If you continue to divert a portion of your income to your 401(k), you increase the amount of the asset that is susceptible to division. Marital assets that constantly accumulate value (i.e. stocks, retirement accounts, real estate) are subject to division up until the date the court grants an absolute judgment of divorce.
If you place a hold on the 401(k) contributions, you will increase your monthly income and spending power. As discussed, your wife still has a 50% interest in your monthly income but you do have discretion with how you use the funds.
In Wisconsin, there is a presumption that any money expended by a spouse is used for the benefit of the marital estate. For example, if you or your wife buys a certain item, the court will assume it was for the benefit of both of you even if the other person never sees the item.
Spouses are free to spend marital income as they see fit as long as the purchased services or products are not considered “marital waste.” Marital waste refers to the expenditure of money that could not possibly benefit the marriage (i.e. gambling, gifts to paramours, extravagant individual vacations, etc.). If one spouse is found liable for marital waste, those expenditures will be counted against him or her in the division of marital property.
In order to give you a definitive answer as to whether you should cease your contributions, I would need to know more about your respective finances and what you plan on doing with the funds.
I recommend consulting with a mens divorce attorney before you take any action as you need financial advice on divorce on how to best protect your interest in non-marital and marital assets.