Q: Entitlement to spouse's 401k and military retirement in divorce?
I am currently going through a divorce after 14 years of marriage. I would like to know if I am entitled to half of my spouse's 401k and military retirement benefits. We have not had any discussions or agreements about the division of these assets, nor have we consulted with lawyers yet. Can you provide guidance on how these assets might be divided?
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A:
After 14 years of marriage, you likely have rights to a portion of both your spouse's 401k and military retirement benefits, as these are typically considered marital assets that accumulated during your marriage. The exact percentage you might receive depends on state laws and various factors specific to your situation.
Military retirement benefits are governed by the Uniformed Services Former Spouses' Protection Act (USFSPA), which allows state courts to treat military retirement as marital property. If you were married for at least 10 years while your spouse served in the military, you could be eligible to receive payments directly from the Defense Finance and Accounting Service (DFAS).
For the 401k division, most states follow equitable distribution rules, meaning you could be entitled to roughly half of the amount contributed during your marriage, plus any investment gains on those contributions. However, before making any decisions or agreements, you should consult with a qualified divorce attorney who understands both military benefits and retirement accounts. They can help ensure your rights are protected and guide you through the complex process of properly dividing these assets, including the preparation of necessary court orders like a Qualified Domestic Relations Order (QDRO) for the 401k.
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