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What divorcing spouses need to know about 401(k) plans

One thing should be clear to anyone in Texas in the process of getting a divorce: Your estranged and soon to be ex-spouse is not a good source of information as to what assets can be divided up in the divorce. Your husband or wife will probably be quick to tell you, for instance, that the money in their 401(k) plan is connected to their job and is not marital property subject to division.

They may also try to tell you that you are not entitled to any share of their stock options at their employer's company. Yet both these bits of "advice" are often not true. That is why it is important to consult with an experienced divorce attorney who knows the applicable law and can accurately advise you.

Most of the time separate property not subject to division in a divorce is very limited. It may include property owned by a spouse prior to the marriage or an inheritance, provided that it is not merged with marital funds. A prenuptial agreement may also designate something to be treated as separate rather than marital property or one of the spouses may receive a gift from a third person intended for him or her and him or her alone.

Another possible exception may be the portion of a person's injury settlement or judgment designated for the individual pain and suffering of an injured person.

Most other assets, including stock options and 401(k) plans will ordinarily be regarded as marital property and subject to division in the event of a divorce. That is why some spouses may try to illegally hide assets in anticipation of a divorce. Good divorce attorneys, however, have ways of compelling disclosures of such hidden assets.

Source: Forbes, "Divorcing Women: The Truth About Your Husband's 401(k) And Other Assets" Jeff Landers, Aug. 08, 2013

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