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Can your spouse keep a 401(k) because it’s in their name?

When you decide to divorce, you and your spouse will probably start divvying up your property. Deciding who gets what is such a difficult process that couples often need the courts to make those decisions on their behalf.

Some people ask for property they have no right to claim, while others try to deprive their spouse of shared marital property in a divorce. If the couple’s retirement savings or 401(k) is through one spouse’s employer, that spouse might try to claim that they solely have the right to keep those funds in the divorce. Is that true?

Several factors influence whether your spouse keeps the account

In a Hawaiian divorce, property division usually occurs in one of two ways. If the two of you reach a settlement before filing or have a marital agreement, you can file for an uncontested divorce. If you don’t agree on the terms, then you file for a contested divorce and allow a judge to review your assets and enter a property division order based on the equitable distribution laws.

If you have a prenuptial agreement that says your spouse keeps their retirement account or if you cede those assets to them in negotiations, you likely won’t have a claim in court. However, in a contested filing, the courts may award you some of the retirement account.

What amount of the account is marital property?

Other than how you file for divorce, the most important consideration when it comes to dividing assets will be whether they are separate or marital property. Any amount that your spouse accrued before your marriage or after your formal separation will remain their separate property. However, contributions from the duration of your marriage are marital property likely subject to division.

Before you give up your right to a share of the retirement account, it’s important to determine its value and whether or not you have a claim to it in court. Your family law attorney can help you with this process.