Can I Get Half of My Husband’s 401k in a Divorce in Texas?

In a Texas divorce, you could be entitled to half of your husband’s 401k, depending on whether contributions to the retirement account were made before or after you married.

Any contributions made before the marriage would be considered separate property and would therefore continue to belong to the spouse who made them after marriage. However, any contributions made during the marriage are considered community property of both spouses, regardless of who made the contribution or whose name is on the account.

Property division in divorce is one of the most complex issues, especially when it comes to things such as retirement accounts which could be comprised of both separate and community property.

The best way to ensure that your rights are protected and that you get a fair share of property that secures your financial future is to seek representation from an experienced property division attorney.

At The Love DuCote Law Firm LLC, we pride ourselves on providing fierce advocacy to our clients. We will do whatever it takes to achieve the best possible outcome for you and your family so that you can move forward with your life in confidence.

Contact us today at 832-843-1691 to talk to an experienced divorce attorney.

How is Property Divided in Texas?

Texas is a community property state, which means that community property is subject to just and fair division upon divorce. In Texas, community property is presumed to belong equally to each spouse equally unless one spouse can present a just and right justification as to why they should keep a greater share of assets.

During your divorce proceedings, one of the first tasks of your lawyer is to help you divide your property into community property (also referred to as marital property) and separate property.

Separate Property

In accordance with Texas divorce law, separate property continues to belong to each individual after marriage. Separate property is anything that either party attained before they married, as well as inheritance, gifts, and compensation.

Where a retirement plan, such as a 401k, is considered, any money invested prior to marriage will continue to belong to the individual after marriage.

Community Property

Community property is all assets that either party acquired while they were married, including retirement accounts, bank accounts, real estate, vehicles, debts, and more.

In Texas, community property is presumed to belong to each spouse equally upon divorce. However, this presumption can be questioned, and the Judge can divide assets equitably if there is a just and fair reason.

If you believe that some marital assets should remain separate, then your lawyer will need to present strong and convincing evidence. For example, perhaps your husband was a gambling addict and acquired significant debt that you did not contribute to. In this case, the Judge may order for the debt to remain separate so that you are not responsible for it after divorce.

Other justifications for keeping certain property separate could include the following:

  • One spouse takes the role of primary caregiver for the couple’s children.
  • One spouse was at fault for the end of the marriage. For example, they committed adultery or were abusive.
  • The personal needs of each spouse, such as their health.
  • The earning capacity of each spouse and the value of their separate property.

Can I Get Half of my Husband’s 401k in a Divorce Texas FAQs

As part of the divorce process, both you and your spouse will be required to disclose all of your assets and debts to each other. This is a legal requirement, and it is essential that both parties disclose everything, including their retirement assets.

If you are concerned that your spouse is hiding assets, such as a retirement fund, then you should share your concerns with your divorce attorney. They can help track assets down and will ensure that they are considered in your divorce decree. If your spouse is found to have hidden assets, then it could result in them losing the right to all of those assets and even a possible jail sentence.

Most retirement accounts, such as 401(k)s are divided upon divorce regardless of how long the marriage lasted. However, other types of accounts, such as military retirement and pensions, have different rules regarding what you are entitled to and when. Your attorney can help you understand what you are entitled to and will fight for the best possible outcome.

In order to be eligible for a division of your husband’s social security or military benefit, you must have been married for at least ten years, as well as some other requirements. Social Security benefits depend on how much you each stand to receive based on your work history. For military benefits, it depends on how long your spouse was in the military while you were married.

In Texas, many counties have standing orders in place that automatically go into effect when a divorce is filed, which order both spouses not to withdraw funds from retirement funds. If your county does not have automatic standing orders, your divorce attorney can help you file for a temporary order with the same provisions. If your husband ignores these orders, then they could be found to be in contempt of court, resulting in jail time.

If you want to keep your own retirement benefits, then there may be some options available to you, which you should discuss with your attorney. For example, you and your spouse may enter an agreement whereby you both keep your own retirement accounts and do not divide them. Another option is to exchange community property equal to the value of your husband’s share of your retirement account.

Usually, the court will issue a Qualified Domestic Relations Order (QDRO), separate from your divorce decree. This will direct your husband’s employer to divide retirement benefits in accordance with the order. If your divorce has been finalized and you did not get a QDRO, then you can go back to court to get it signed. 

Texas law does allow for couples to come to private agreements. In fact, the court prefers couples to try and reach their own agreements. You and your husband can each have a divorce lawyer who will help you come to a fair arrangement, which must then be approved by a Judge. If you cannot reach an amicable agreement, then the court will make rulings on your behalf in a hearing, where your attorney will present your case.

Contact Love DuCote Law Firm LLC Today

Property division is complex, especially when it comes to assets such as retirement benefits. Once a court order has been issued, it is legally binding. Therefore, it is essential that a decision is made which protects your interests.

How your property is divided will have a big impact on your financial stability in the future. At The Love DuCote Law Firm LLC, our goal is for you to move on with your life with stability and confidence.

We are committed to protecting your rights and can guide you through all family law matters, including property division, spousal support, child custodychild support, and more.

Contact us today at 832-843-1691 to speak with a member of our legal team.