Skip to main content

401 k plans and divorce in Massachusetts

My husband has a 401 k plan with a lot in it and I have a IRA account with not that much. Are both of them split up evenly if we divorce or does he get to keep his 401 k? If it is split up, how? In another post you talked about the 401 k plan being marital property but not about how, specifically, it would be divided. We have always lived in Massachusetts. Thank you.

Editor's Response

Just about all types of retirement accounts are considered part of the marital estate in MA, including IRAs, Keoghs, 401 k plans, and 403 k plans, regardless of who is named on the plan.  There are a few types of retirement funds that are not considered part of the marital estate, including railroad retirement benefits and social security benefits.  Massachusetts General Law Chapter 208, Section 34 states in relevant part:

In addition to or in lieu of a judgment to pay alimony, the court may assign to either husband or wife all or any part of the estate of the other, including but not limited to, all vested and nonvested benefits, rights and funds accrued during the marriage and which shall include, but not be limited to, retirement benefits, military retirement benefits if qualified under and to the extent provided by federal law, pension, profit-sharing, annuity, deferred compensation and insurance.

Typically, either on their own or through attorneys, parties to a Massachusetts divorce action will settle the distribution of marital assets, including pension funds, rather than letting a court decide.  Massachusetts courts have a lot of discretion when it comes to the division of property, and each case will be considered on its own facts, so it is impossible to tell how the court will divide your property.  The goal is always equity. Here is what the law (Section 34, again) says:

 . . . in fixing the nature and value of the property, if any, to be so assigned, the court, after hearing the witnesses, if any, of each party, shall consider the length of the marriage, the conduct of the parties during the marriage, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties and the opportunity of each for future acquisition of capital assets and income. In fixing the nature and value of the property to be so assigned, the court shall also consider the present and future needs of the dependent children of the marriage. The court may also consider the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates and the contribution of each of the parties as a homemaker to the family unit.

In practice, MA divorce attorneys  often offer this general rule:  The longer you and your spouse were married, the more likely it is that all marital assets will be divided equally.  In cases where the couple has only been married a short time, it is more common for the court to try to 'turn back the clock' and place the parties in the position they were in before the marriage.

Hope all that helps.

 

division of 401K assets

To supplement the information provided by the editor, you need to know that retirement assets are either valued at their current market value by an actuary and then devided based upon that value (i.e. you get the $300,000 house value and husband gets the three hundred IRA value), or the asset is divided by percentage. eg. W gets 50%, H gets 50% . A retirement asset is then divided between the parties using the percentage determined in the marital asset division. The retirement asset is not cashed out at that time, but a device called a QUADRO (Qualified Domestic Relations Order) is entered and served on the company which holds the IRA or provides the pension/keough etc.
 
A normal QUADRO requires that upon retirement the funds will USUALLY be divided based upon the number of years you lived together, divided by the number of years the wage earner had in the plan, times the percentage of the H or W's percentage split of the asset. Example pension of $1,000 is to be paid when H retires. H & W lived together for 20 years and husband worked at the employer for 30 years. W is to get 50%. W is entitled to 50% of 2/3 of the pension, or $333.33 per month. H recieves the balance.
 
Usually this method is cheaper and easier for divorcing couples to use. Actuaries can be expensive and litgation to determine what the real value is can be even more expensive, as well as creating lasting anger at the spouse. Divorce is always best if the parties can agree. If you have any further questions, please don't hesitate to contact me.
 
Attorney Kevin Gaughen Sr.

Talk to a Lawyer Today
Find a Divorce Attorney in your County
Most offer FREE Consultations

Recent Posts about Massachusetts Laws

ForumLast post
I have a lease until June 2012, but I am very unhappy with my living situation, I pay half of the rent. I am a....
I cannot answer this question based upon your statement. Who are they....
2/8/2012 11:00
by Alexm2012
Is it legal for Massachusetts employer to send a SALARIED employee home for the day, without pay, for a dress ....
Federal and Massachusetts courts have upheld employee dress codes as l....
2/8/2012 09:09
by Munsterwoman
Hi, I'm the grandmother of 4 beautiful grandchildren. The oldest has hit a rough spot with defiance (puberty ....
I'm very sorry about your situation and the ordeal your family is goin....
2/7/2012 23:02
by gramy
Hello. I'm in the middle of an appeal for SSDI and my attorney asked me to get a residual functional capacity....
First, I guess it's not a good sign that you do not trust your current....
2/7/2012 08:18
by Adam13
Hi everybody. I am trying to make an offer on a house, which is an estate sale. As I understand, the execut....
2/6/2012 13:50
by ilya980
I've been helping a friend pay for a lawyer to go to probate court. Her ex-Boyfriend, whom she is taking to c....
2/6/2012 12:21
by rbiddle
If I witness a person getting beat up at a party and just run away without calling the cops or helping the guy....
I don't think so.  In terms of civil liability (as opposed to cri....
2/3/2012 07:17
by Coller
My father passed away in September. The probate is over and settled, no contests to the will. My mother is the....
Your dad died in September and the probate is already settled – ....
2/2/2012 18:50
by JGraul
Hi. My cousin is charged with possession with intent to distribute drugs in a Massachusetts court. He is not a....
Unfortunately for your cousin, if an immigrant is convicted of certain....
2/2/2012 08:07
by Sister6
Just curious if you have any thoughts or have read any information regarding the success rate of divorce media....
Yes, I've also seen the 90% estimate on various websites, with some me....
1/24/2012 11:47
by RRM
Several of my colleagues will dictate consultation notes in which they state they don't have the complete hist....
The question probably boils down to whether or not such practice is wi....
10/2/2011 18:37
by Anonymous