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Andrew Bestafka, Monmouth County Divorce Lawyer

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How Are 401(k)s Divided in Divorce?

For many divorcing couples, their 401(k)s and other retirement accounts are usually some of their most valuable assets. Retirement accounts (or at least a portion of the value of those accounts) are considered part of a couple’s marital estate subject to distribution between the spouses in divorce. But due to the complex tax laws governing 401(k)s and other tax-advantaged retirement accounts, dividing these accounts in divorce often becomes one of the most difficult and contentious parts of any divorce proceeding.

How the Value in a 401(k) Is Split in a Divorce

Generally, all funds that spouses contribute to their 401(k) or other retirement accounts during their marriage are considered marital property and are subject to equitable distribution. For example, if you make $250,000 in contributions to your 401(k) during the period of your marriage, that $250,000 will likely be considered marital property. In addition, any growth in the value of the account during the marriage may also be considered marital property that can be equitably divided.

Unlike other states that use an equal distribution approach to dividing marital property, New Jersey uses an equitable distribution approach. This means that courts are not required to divide marital assets 50/50. Instead, courts will seek to divide the couple’s assets in a way that seems equitable, or fair. In deciding on a fair division, courts consider factors such as the respective financial situations of the spouses, each spouse’s earning capacity, the standard of living during the marriage, and the length of the marriage.

The Effect of Prenuptial/Divorce Settlement Agreements

Of course, spouses may decide to treat their 401(k)s and other retirement accounts differently from the standard equitable distribution rules. For example, spouses may execute a prenuptial agreement prior to marriage, or a marital settlement agreement immediately prior to or after filing for divorce. In this agreement, spouses may expressly waive any rights they may have under the law to the funds contained in their spouse’s retirement accounts. Or spouses may agree on how to divide their retirement funds, rather than letting the court decide what an equitable distribution would be.

Will You Have to Pay Your Ex Funds from Your 401(k)?

If your 401(k) or other retirement accounts are subjected to equitable distribution in divorce, does that automatically mean you will have to pay funds to your ex from your accounts? Not necessarily. If your and your ex’s retirement accounts have roughly similar values, you both may agree to simply keep your own accounts, or the court may rule that allowing you both to keep your own accounts achieves an equitable distribution of the marital estate.

But where one spouse earned significantly more or contributed more to their retirement accounts during the marriage, the court may decide that the other spouse is entitled to a portion of the value of that account. When that happens, funds will have to be paid from the account(s) of the higher-earning spouse. Of course, many types of tax-advantageous retirement accounts, such as 401(k)s, are subject to rules that prohibit the withdrawal of account funds prior to retirement or prior to the account holder reaching a certain age. Early withdrawals may make the account holder liable for penalties or significant taxes.

A spouse that receives a portion of their ex’s retirement accounts may take the funds in one of several ways:

  • If the recipient spouse has their own 401(k), IRA, or another similar account, they may choose to directly roll over the funds they receive into their account. Doing so can ensure that neither you nor your spouse is held liable for any penalties or taxes for early withdrawal.
  • The recipient spouse may choose to defer receiving any funds from the account until their ex retires.
  • The recipient spouse can immediately cash out their portion of their ex’s account by taking a lump sum distribution. While penalties for early withdrawal may be avoided, the recipient spouse will still have to pay income taxes on that distribution.

If a portion of your 401(k) or other retirement accounts are distributed to your spouse in divorce, you will need a court order known as a qualified domestic relations order, or QDRO to avoid the penalties and taxes that come with early withdrawals. The QDRO authorizes the administrator of your retirement plan to pay money to your spouse according to the terms of the order, without any penalty to you for withdrawal.

Contact Us for Help in Resolving Issues with Your Retirement Accounts During Divorce

If you are seeking a divorce and have questions about how your and your spouse’s 401(k)s and other retirement accounts will be divided in your divorce, call the Monmouth County divorce lawyers of the Law Office of Andrew A. Bestafka, Esq. today at (732) 898-2378 or fill out the contact form on our website for a confidential consultation. An experienced divorce lawyer from our firm can help you understand your rights and options when dividing your retirement accounts during divorce.