WILL MY SPOUSE GET HALF OF MY 401K IF I SEEK A LEGAL SEPARATION?

QUESTION: Married 30 yrs. Husband hasn't worked for about 10 yrs. and refuses to work. Husband has BA degree in engineering from before we were married. I have an AA degree from before we were married. No children. If I finally decide to pursue a Legal Separation, will he get 1/2 of my 401K?

MY RESPONSE:

In a divorce or legal separation, the Court divides the net community property 50/50 between the parties.

Your 401K is one of the assets that make up the net community property, so it would most likely be divided via a QDRO [Qualified Domestic Relations Order] in a divorce or legal separation.

The fact that you earned your 401K during the marriage and your husband has not worked for 10 years is immaterial, since each party's income during the marriage is community property.

To the extent of contributions to your 401K during the marriage, those contributions and any company matching contributions, plus or minus any investment gains or losses thereon, are community property.

I question why you would seek a Legal Separation instead of a Dissolution of your Marriage?

Unless there are religious reasons why you would not divorce your husband, you would be far better off to divorce him than to get a Legal Separation.

A Legal Separation divides Community Property and sets Spousal Support just as a Divorce would do, but a Legal Separation leaves you married to your husband.

Were you to get a Legal Separation, hour husband would remain your husband (i.e., he wouldn't become your ex-husband), and you would be forced into the worst possible marginal income tax bracket, Married filing Separately, unless you and your husband file Joint Income Tax returns (you couldn't force him to do so), and you would have to go through a totally new Family Law case, for Dissolution of Marriage, from start to finish, to divorce him.

Also, in a Legal Separation or Divorce case, the Court, under the circumstances you describe, would likely order you to pay Spousal Support (Alimony) to your husband until his death or remarriage.

You should retain an experienced Family Law Attorney to represent you in your Legal Separation or Divorce case, to attempt to have the Court impute income (ability and opportunity to work) to your husband, in an effort to minimize or eliminate your risk of a Spousal Support order.

This educational blog is brought to you by DONALD F. CONVISER, an effective and aggressive Los Angeles Family Law Attorney and Divorce Lawyer serving clients in the courts of Los Angeles and Ventura County for over 35 years,owner of Warner Center Law Offices, with offices in Woodland Hills and Century City. Call 888.632.4447 or 818.880.8990 for a free confidential consultation with a Certified Family Law Specialist to discuss your divorce or family law issues. | www.conviser.net | www.conviserfamilylaw.com |