How to Determine Who Gets a 401k in a Divorce

The marriage is coming apart, but how will the 401k plan be split? Here's how to figure out who gets what.

Instructions

Difficulty: Moderately Challenging

1. Know that in a divorce, your spouse may have the right to all or part of your 401k plan.
2. Talk to the administrator of the 401k plan as soon as possible to find out your options.
3. Find out all you can before you consult a divorce lawyer or accountant.
4. Understand that the plan itself will play a key role in determining what you can and can't do when dividing benefits.
5. Consider keeping the 401k and letting your spouse take other assets. This decision will have tax implications that you will need to evaluate.
6. Think about splitting the 401k assets. You'll need a court order to give your spouse the right to be considered an alternate payee.
7. Consider rolling the spouse's share of the 401k proceeds into an individual retirement account, or IRA. This option will apply only if you have left the job that provided the plan or are already past age 59 1/2.

Tips & Warnings

• Ask your financial planner for advice.
• Ask your 401k plan administrator for a sample copy of the court order needed to make your spouse a payee.
• Your attorney probably won't research your 401k plan's rules regarding divorce settlements. Do it yourself.