Do I Get Half of My Husband’s 401(k) in a Divorce?

In many cases, yes—you may be entitled to a portion of your husband’s 401(k) in a divorce, particularly if the funds were earned during the marriage. However, whether you get exactly half depends on a few key factors, including your state’s laws and the specific circumstances of your case.

1. Marital vs. Separate Property

Generally, 401(k) funds accumulated during the marriage are considered marital property. This means they are subject to division during a divorce. Any contributions made before the marriage are typically considered separate property and may not be divided.

2. State Laws Matter

• Community Property States (like California, Texas, Arizona): Courts usually split marital assets 50/50. In these states, you’re more likely to receive half of the 401(k) accrued during the marriage.
• Equitable Distribution States (the majority of states): Assets are divided fairly, but not necessarily equally. The court considers factors such as each spouse’s income, contributions to the marriage, and future financial needs. You might get less or more than half, depending on the situation.

3. Qualified Domestic Relations Order (QDRO)

To receive your portion of a 401(k), a court must issue a Qualified Domestic Relations Order. This legal document instructs the plan administrator to divide the retirement account according to the divorce agreement, without triggering taxes or early withdrawal penalties.

4. Negotiated Settlements

Some couples choose to divide assets differently through negotiation. For example, one spouse may keep the full 401(k) while the other receives a greater share of home equity or other assets to offset the balance.

Bottom Line:

You’re not automatically entitled to exactly half of your husband’s 401(k), but you do have a legal claim to part of it if the funds were earned during the marriage. To understand your rights fully, consult with a divorce attorney familiar with your state’s laws.