“Will I lose my 401(k) if I divorce my spouse?” That is the most typical query divorce attorneys hear as soon as the child-related questions are answered. Sadly, there isn’t any easy reply. In a nutshell – the worth of the 401(okay) will likely be thought-about in a last division of the marital property no matter who really receives it ultimately. Pursuant to Indiana Code 31-15-7-Four, the court docket should divide each asset of the events no matter whether or not it was owned by both partner earlier than the wedding, acquired by both partner in his or her personal proper after the wedding however earlier than last separation of the events, or acquired by their joint efforts. In different phrases, each debt and each asset that existed on the date of submitting for divorce, should be included within the marital “pot” and should be divided in a good and equitable method both by the court docket or by settlement. Additional, pursuant to this statute, the court docket should “presume” 50/50 division of the marital pot is a good and equitable division. However that’s simply the place to begin! A celebration might rebut the presumption in favor of a 50/50 division primarily based on the distinctive circumstances of his or her case. Let us take a look at two very completely different circumstances and the outcomes for every. 1. Mary and John. Mary labored all through the wedding and contributed important sums of cash to her 401(okay), now value $200,000.00. She’s going to owe taxes of roughly $24,000 when she withdraws that cash, so the post-tax worth is roughly $176,000. She additionally saved what she might through the years and had $74,000.00 in her personal financial savings account. That is post-tax cash. The entire post-tax worth of each accounts, subsequently, is $250,000.00. Mary is anxious that she should give John half of her hard-earned cash within the occasion of a divorce. John additionally labored all through the wedding, incomes barely greater than Mary, and nearly all of his earnings was used to pay the daily bills for the household. He additionally paid for the luxuries the household loved equivalent to holidays to unique nations, horse-back using classes for his or her daughter, and journey soccer bills for his or her son. The events personal a house with fairness of $250,000.00. No taxes would have been owed on that actual property if it had been offered on the date of submitting. John needs to maintain the house however he is apprehensive that he should take out a further mortgage so as to pay Mary her half of the fairness. That is a simple one. These circumstances lend themselves to a 50/50 division of the marital property. The argument for a 50/50 division is that each events contributed to the whole worth of the marital property – Mary to the financial savings, which the events would take pleasure in of their later years, and John to the household’s excessive way of life. The dilemma is that John can benefit from the marital residence proper now whereas Mary can not take pleasure in her 401(okay) till she turns no less than 59 ½ years previous. To ensure that every celebration to have equal entry to the liquid property within the marital property, then, the events must divide the 401(okay) equally, divide the financial savings equally,promote the home and share the proceeds equally (or John must take out a mortgage so as to pay Mary her share of the fairness). Nonetheless, if the $74,000 financial savings is sufficient money for Mary to buy a brand new residence and to maintain the mortgage funds inside her funds, the answer that addresses each events’ unique issues could be for Mary to maintain the 401(okay) and financial savings whereas John retains the house. So – the reply to Mary’s query is “no – you don’t have to lose your 401(k) if you divorce your husband.” Nonetheless, you will need to embrace it within the marital pot and you will need to divide that pot in a good and equitable method. Events who collaborate in direction of a good and equitable final result that addresses every events’ issues have the additional benefit of conserving lawyer charges low and preserving extra of the marital property for the events and their youngsters. 2. Susan and Alex. Alex had a 401(okay) value $200,000.00 when he married Susan and contributed a further $100,000 after the wedding. Susan had a 401(okay) value $50,000.00 when she married Alex, made no additional contributions afterwards, and withdrew the cash to pay for a late honeymoon journey to Europe. By the point taxes and penalties had been eliminated, Susan’s $50,000 had been diminished to $35,000.00. There was no prenuptial settlement. Susan and Alex had been married for three years and had no youngsters collectively. Susan gave up an excellent job and stayed residence to take care of her two youngsters from a previous marriage.Susan additionally entertained Alex’s shopper’s at residence and in any other case helped Alex develop his clientele in the course of the years she didn’t work. Assuming that Husband’s 401(okay) is the one marital asset to be divided, the query of “how” isn’t really easy! Pursuant to I.C. 31-15-7-Four, Husband’s whole 401(okay) should be included within the marital pot regardless that most of it was earned previous to the wedding. Susan’s pre-marriage 401(okay) does NOT go within the pot as a result of it not existed on the date of submitting for divorce. Nonetheless, a court docket might contemplate all of the elements concerned on this case so as to determine an equitable solution to divide Husband’s 401(okay). The elements a court docket may contemplate embrace the next: a) Susan spent her pre-marriage 401(okay) on the couple whereas Husband stored his pre-marriage 401(okay) intact, b) Susan was in a position to keep at residence and take care of her youngsters whereas Alex supported the family on his earnings, c) As a result of Susan didn’t work in the course of the marriage, she was in a position to entertain shoppers and in any other case assist Alex improve his earnings, d) Susan is able to incomes a major earnings however will earn significantly lower than Alex, e) Husband earned $100,000 of the 401(okay) in the course of the marriage. In an actual life situation just like this one, the events agreed that Alex would pay Susan the sum of $150,000.00, which is 50% of all the 401(okay). This settlement acknowledged the truth that Susan helped Alex develop his enterprise in the course of the three years they had been married, the truth that she could be beginning over as soon as she discovered new employment, the truth that she made much less cash that Alex, the truth that she wouldn’t be capable to exchange the $50,000 she spent on the couple, and the truth that Susan obtained the good thing about staying residence along with her youngsters. May a court docket have awarded Susan a lesser quantity? Sure, certainly! Nonetheless, Alex was involved that his lawyer charges would value greater than the extra cash he agreed to pay Susan. He was additionally involved that he could be ordered to pay a few of Susan’s lawyer charges due to the disparity of earnings between the events. So – the settlement benefited each events. The essential factor is that Susan and Alex each felt that their negotiated settlement was truthful and equitable and that they each saved face and cash by not litigating these issues in a public discussion board.