Please ensure Javascript is enabled for purposes of website accessibility

GillespieShields is committed to providing access to exceptional legal services throughout the current coronavirus (COVID-19) crisis. The firm is providing a reduction on all professional fees for new hourly matters through May 1, 2020. Please call our intake team today, 602 870 9700. Learn more

Does A Spouse Have The Right To Take Your 401k In A Divorce?

It’s no secret that the divorce process can be a difficult one, but many people aren’t aware of an important aspect of the legal proceedings: does your spouse have the right to take your 401k in a divorce?   It is possible for a spouse with significant retirement savings to use them as leverage in negotiations.  In order to protect yourself and save these funds, you’ll need to make sure you understand how they could be affected by your impending divorce.

What Is 401k?

The 401k is a retirement account that employers offer to their employees. The employee has a certain percentage of his or her paycheck automatically contributed from each pay period, and the employer also usually contributes a set amount of funds for a tax benefit.

This type of plan can sometimes be combined with other types of benefits provided by an employer like a pension plan, healthcare plans, etc., in order to provide an enhanced package deal for retiring workers.  This means that if you have a 401k through your work but are considering leaving it behind when you retire because you find another job elsewhere (or just don’t need such a high level of income anymore), all these other things will still be available as part of your new company’s retirement program! The 401k helps you to:

  • Build your retirement with a customized plan
  • Gain access to benefits, such as healthcare and more
  • Get the most out of all your different retirement options 
  • Peace of mind that you are prepared for life after work

There are two types of 401k. The traditional 401k and the Roth 401k. What’s the difference between the two?

The Traditional 401(K)

This option allows for more control over how and when retirement money will be spent without penalizing investors with taxes on earnings at withdrawal time.

The Roth 401(K)

Invested contributions are taxed upfront so that withdrawals later won’t come as such an expensive surprise.

Does My Spouse Have The Rights To My 401(K) In A Divorce?

Divorce can be a torturous process. It’s not always nice; it isn’t patient, nor is it polite. There are times when the parties involved in divorce proceedings will snap at each other or become easily irritated by something as simple as an email that wasn’t responded to promptly enough for their liking – and this happens even if you have retirement benefits stored up in your 401k account!

You may be selfish for wanting to save your assets. It could even be a matter of life and death. Your spouse has legal grounds to claim all or part of your 401k funds as part of the divorce settlement, no matter what the situation is on any given day. And in most situations, you’ll have to figure out how to divide up cash fairly with your spouse through being organized, prepared, and educated about your rights within this process so you can make it work in a fair way that makes things easier for both you and your spouse down the line.

You don’t want to get caught off guard by not understanding who gets what at such an important time where decisions will be made because understanding will:

  • Empower you to protect your assets
  • Provide solutions that will make the process fair and easy for both parties
  • Educate on how to divide 401k funds in a fair way 
  • Enhance long-lasting relationships with spouses
  • Save your marriage by getting educated and prepared on the subject
  • Help keep stress levels at bay with a fair, organized process
  • Protect yourself from being taken advantage of in a divorce settlement

Divorce can be a tough process for anyone, but it is especially hard when you have to divide your 401k funds. We want to help protect you in this difficult time and make sure that any decisions are fair for both parties. If after reading through this article, there are still unanswered questions or concerns, please feel free to contact us. Our team is ready and waiting with solutions that will benefit everyone involved. Let’s keep stress levels at bay by getting educated and prepared today!

Are You Looking for a Family Law Attorney Skilled in the Distribution of Property and Division of Debt in a Divorce?

The attorneys at GillespieShields are well-versed in a variety of different legal fields, ranging from family law to civil suits, employment disputes, and probate cases. Although we specialize in several areas of practice, our greatest passion is family law. In Arizona, married couples are required to divide property upon divorce. All property acquired during the marriage will be divided equally between both parties; it is known as community property in this state and applies to all types of possessions (both tangible and intangible), real estate, income, or debts that exist at the time of divorce. This can make dividing marital assets a daunting task if not done correctly from day one because there are certain rules which must be adhered to! During our private, one-on-one consultation, we’ll take the necessary time to answer any and all of our questions surrounding Arizona’s family laws, your family’s unique situation, and the possible court outcomes. Contact us today for your consultation!

Family law attorney Mesa & Phoenix Arizona, Mesa & Phoenix AZ Family law attorney, Top Family law attorney, Best Family law attorney, Civil law attorney, Estate planning attorney

Disclaimer 

The materials available on this website are for informational and entertainment purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem.  You should not act or refrain from acting on the basis of any content included in this site without seeking legal or other professional advice. The information presented on this website may not reflect the most current legal developments.  No action should be taken in reliance on the information contained on this website and we disclaim all liability in respect to actions taken or not taken based on any or all of the contents of this site to the fullest extent permitted by law.

Contact Us


Phoenix Location

7319 North 16th Street, Phoenix, AZ 85020 | 602-870-9700

Mesa Location

1630 S. Stapley Drive, Suite 212, Mesa, AZ 85204 | 480-985-4000

COPYRIGHT ©1985-2022 GILLESPIE SHIELDS | ALL RIGHTS RESERVED | PRIVACY POLICY | ACCESSIBILITY