Protecting your 401K retirement In a divorce in Oklahoma is possible. The key to who gets what depends on several important factors. When a couple divorces, any marital property must be divided. Like most states, Oklahoma divides marital property based on the legal doctrine of “equitable distribution” doctrine for property division. This contrasts with the nine states that follow the legal concept of community property, which divides marital property equally between the spouses. Oklahoma’s doctrine of equitable distribution divides marital property equitably, which does not mean it will divide marital property equally in a divorce case. The court will divide the property based on what the court believes is fair. A retirement account like a 401(k) could be a marital asset if earned during the marriage.
What Property Is Divided In An Oklahoma Divorce?
There are two types of property in any Oklahoma divorce matter: marital property and separate property. An Oklahoma court will divide any marital property, but any separate property remains the separate property of a spouse and is not divisible in an Oklahoma divorce case. A 401K retirement In A divorce in Oklahoma and its division depends largely on the time of its acquisition.
Separate Property
Non-marital property includes property owned and personal monies possessed by the party before the marriage. Separate property also includes inheritances, gifts, and financial gain derived from contests or gambling winnings. Each spouse receives 100% of any separate property. However, if commingled, separate property may transmute, or change, from separate property to marital property. In an Oklahoma divorce case, the court enters a decree confirming in each spouse the property owned by that spouse before marriage and the undisposed-of property acquired after marriage by that spouse in their own right.
Marital Property
Marital property is any property that is not separate property regardless of who paid for the property or holds title to the property. This includes retirement accounts like a 401(k) account. This means that if the asset was come by while you were married to your spouse it doesn’t matter who made all the money used to buy it. The court will rule that the property was purchased with money that was from marital industry.
Dividing A 401(k)
When spouses are unable to agree on how to divide a marital asset in a settlement agreement, or there is no prenuptial agreement that makes such a determination, the court will make this decision based on various factors that include the following:
- The Assets Value
- Assets Use
- The contributions of both spouses during the marriage that increase the asset’s value
- The asset’s effect on the children or other spouse
This is not an all-inclusive list but helps demonstrate that Oklahoma courts have broad discretion in deciding what is fair and equitable when dividing property in an Oklahoma divorce case.
A court may divide a 401k retirement in a divorce as follows: if you were together for fifteen years and your contribution is $150,000 to the 401(k), your spouse would likely get a 50% share or $75,000. However, the court will make an overall distribution based on what is fair rather than what is equal. The court could look at who took what marital debt or if either party is paying the other alimony or support. Thus, there is no guarantee that you would receive 50% or $75,000 in the above example. If the other spouse also has a retirement account of similar value, the court may simply award each spouse their personal retirement account.
Qualified Domestic Relations Orders (QDRO)
Many states use a form of order in divorce cases called a Qualified Domestic Relations Order (QDRO) to specifically detail how monies from a retirement account will distribute. A QDRO specifies the percentage of the retirement funds allocated to a former spouse. The QDRO informs the administrator of the 401(k) plan on how to pay the non-employee spouse a share of plan benefits. A QDRO also allows you to avoid any fees for accessing these retirement funds early.
Tulsa Family Law Attorneys
The attorneys at Tulsa Divorce Attorneys and Associates are qualified and knowledgeable in divorce cases that involve the division of marital assets like retirement funds. Short of a premarital agreement the key is when the money contribution went to the retirement account and the negotiation skills of the attorney you hire. For a free and straight forward consultation call our Tulsa divorce attorney today at 539.302.0303