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Steve W. Marsee, P.A. Orlando Divorce Attorney
  • Experienced DIVORCE ATTORNEY

Is My Spouse Entitled to My 401(k) in a Florida Divorce?


One of the most confusing and stressful aspects of a divorce is dividing marital assets. Since 401(k) and retirement accounts are subject to Florida’s equitable distribution law, the process of dividing marital property becomes even more complicated.

If you have 401(k) or other retirement accounts and want to get a divorce in Florida, it is advised to consult with a knowledgeable family law attorney to figure out whether your spouse is entitled to a portion of your 401(k).

Schedule a consultation with a results-driven and dedicated attorney Steve W. Marsee by calling 407-521-7171.

How are 401(k) accounts divided in a Florida divorce?

Under Fla. Stat. § 61.075, all assets acquired during the marriage must be split between the spouses in an equitable manner. Equitable does not mean “equal,” which is why the process of property division is not as straightforward as it might seem.

Retirement accounts and 401(k) are also subject to equitable distribution of property in Florida. There are several options for how to divide 401(k) during a divorce:

  1. Give your spouse certain assets in exchange for your 401(k). You can keep your retirement savings intact if you give your spouse certain assets of similar value to ensure that the exchange is fair and equitable.
  2. Split your 401(k) with your spouse. You can divide your 401(k) in a Florida divorce through a court order. However, this option usually requires more time and assistance from an experienced attorney.
  3. Liquidate a portion of your 401(k) and hand part of it over to your spouse. However, keep in mind that there are tax consequences of withdrawing funds from your 401(k) before retirement.
  4. Transfer a portion of your 401(k) to your spouse’s individual retirement account (IRA). You can rollover your spouse’s share of your 401(k) into their IRA without any tax consequences or penalties.
  5. Keep your 401(k) savings intact. Finally, you and your spouse can keep your 401(k) accounts intact if you do not want to deal with the complicated process of dividing retirement accounts.

When it comes to dividing your 401(k) account during a divorce, keep in mind that you need a court order that confirms your spouse’s right to a portion of your 401(k).

Contact an attorney to help you reach an agreement with your spouse

While 401(k) accounts are subject to Florida’s equitable distribution law, you and your spouse can work out a mutually acceptable agreement regarding the division of 401(k) without going to court.

However, it is advised to contact an attorney to help you negotiate with your spouse and ensure that your agreement complies with all applicable state laws.

A skilled lawyer will make sure that your spouse does not receive more than they are entitled to. Before withdrawing your 401(k) funds or otherwise transferring them to your spouse, consult with an attorney. Our Orlando property distribution attorney at the Law Offices of Steve W. Marsee, P.A., can help you protect your rights and interests when dividing 401(k) upon a divorce. Call 407-521-7171 to talk about your particular situation.


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