Is it Possible to Keep Your 401(k) in Your Divorce?

One asset that many Texans do not consider their spouse to have an interest in is their 401(k) or any other retirement fund that they have been slowly building during the course of their marriage. Having to divide up your retirement funds may throw a wrench into one’s retirement plans, but, where possible, courts often award retirement accounts to the spouse in whose name they are held. Provided the somewhat-ambiguous “just and right” standard is met, Texas divorce courts have wide discretion to divide up individual assets as they see fit. This may involve splitting each asset, such as 401(k), and dividing the funds therein between the spouses. However, more commonly, courts attempt to award whole assets to either party to avoid an overly complicated, and perhaps unnecessary, division of property.

With this in mind, it is important to focus aspects of your case at trial on why the court should award your 401(k) to you. Factors such as your role in contributing to it, your need for future support, the value of assets in your spouse’s control, your and your spouse’s relevant incomes, which spouse is appointed primary conservator of their children (if any), and many others can be useful to craft a compelling case to keep your 401(k) plan (or any other asset).

In addition, you can sometimes increase the likelihood that you keep your 401(k) post-divorce by entering into a settlement agreement with your spouse. In Texas, spouses are free to enter into settlement agreements to resolve one or more aspects of their divorce, such as the division of their community estate. Settlement is an important process in a Texas divorce, because it can often be the best way to ensure that you retain your hard-earned nest egg and any other assets that you consider important.

However, whether your community property is divided by agreement or by a court, having experienced legal counsel is crucial to increase your likelihood of success. The adept attorneys at McClure Law Group have experience in negotiating divorce settlements and in advocating for client’s positions in court. No matter which direction your divorce case takes, call McClure Law Group at (214) 692-8200 today to schedule a consultation.