Q: Are the gains from a 401k account prior to marriage separate or community property?
Question on a 401k that I had prior to getting married. Everything I’ve read is it is separate property and not divisible at divorce. Are the gains from that account also separate property? My wife is saying the 401k balance prior to marriage is separate property, but the gains are community property.
A:
So long as there were no contributions during the marriage, then every penny of your 401(k) will be considered your separate property. You owned it prior to the marriage, and you alone get to benefit from any increases.
Perhaps you could convince her by asking her whether she would have been willing to contribute one half of
any losses had it lost value during the marriage.
A qualified and experienced family law attorney can of course assist you in considering your options
and then getting where you need to be. Most of us offer free, 1/2 hour consultations, in which your
matter can be discussed in detail. That would be a great opportunity to discuss the specifics of your
matter and develop a plan. I would encourage you to quickly schedule this free consultation.
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