How to protect your 401K in a divorce

Divorce proceedings are as much a financial upheaval as an emotional one, and money may be at the forefront of your mind during this time. Even if it isn’t a concern, it is wise to protect your assets as much as possible in a divorce to ensure a healthy future for yourself and your family.

How do I protect my 401K?

It is a common concern among those undergoing divorce proceedings. A prenuptial agreement in place before tying-the-knot is the ideal situation. Unfortunately, it is not the case for many people.

A prenuptial agreement is a legally binding agreement that is set in place prior to getting married. It is a practical solution to deciding what assets are to be considered “separate property” in the event of a separation, and which are “marital property” to be divided up during the divorce proceedings. You can cite your 401K in this agreement as “separate property.”

If you don’t have a prenuptial agreement, though, your 401K will be considered part of the marital assets and divided accordingly. The best way to protect it following the initiation of divorce proceedings is to stop making voluntary contributions to it as soon as possible.

TIP: The law varies among states as to when you are legally allowed to stop making contributions, so you will need to check with a local divorce attorney before taking action.

Another possibility is to investigate whether state law allows you to exclude any contributions you made to your 401K before you married from the divorce settlement. The laws vary on this between jurisdictions, and you will need to consult a local divorce attorney for a clearer picture.

Outside of these possibilities, it is likely that your attorney will draft a QDRO (Qualified Domestic Relations Order) and send it to the divorce court. Once signed by a judge and accepted by the plan administrator, the division of assets will become official and can be enforced.

Typically, the judge will deem any post-marital contributions and subsequent earnings as a result of these contributions, to be marital assets, and divided as such. The QDRO will give you the option to roll over your portion into your own plan, however, penalty-free and tax-free. 

Know your plan

Each plan comes with its own rules and stipulations. Where some divide earnings by percentage, others divide them by shares. Some plans allow you to pay out your ex-spouse’s portion at the time of divorce, where others may require you to wait until retirement to draw on the funds.

You are the best person to research your plan. It may seem like a lengthy and arduous task, but you can be assured that you have your own best interests at heart.

Whatever your individual plan specifies, it is more than likely that your spouse will be entitled to a portion of your 401K in the absence of a prenuptial agreement. There are a few common settlement options available, including:

  • Keeping your 401K and giving your spouse alternative marital assets of comparable value.
  • Splitting the 401K assets between you and your spouse.
  • Liquidating the portion of your account that meets the QDRO and agreeing on a lump sum settlement with your spouse. 

These tips are a brief overview of the options that may be available to you. The best way to obtain a complete picture in your unique situation is to consult with a local, knowledgeable divorce attorney regarding your 401K. Do some background research yourself as to what your particular plan permits to give yourself better insight into the situation.

For more advice and state-specific information, contact one of our professional divorce attorneys today.


How to talk to kids about divorce

For any couple with children, the decision to file for divorce holds extra gravity. Concerns about how your child will cope will more than likely be at the forefront of your mind. The situation will be life-changing for everybody involved, and a turning point in the lives of your children.

Children are incredibly resourceful and adaptable, though. If the situation is handled correctly, they can navigate their way through the upheaval and come out of it in a good place. The role you play in guiding your children through the divorce process is pivotal in ensuring a healthy emotional outcome for them.

While each situation is vastly different, there are a few tips that are considered good practice when it comes to telling your kids about the divorce.

Tips for speaking to your kids about divorce

1. It’s not about them

The most important thing you can do is make sure your kids know that the divorce is not about them. You can’t reiterate enough how both parents still love them. Children will need reminding of this affirmation regularly throughout the process and into the future.

2. Choose your timing

Kids can have varying responses depending on how the news is delivered. It helps if you’re in a position where you can both sit down with your child and deliver the news together. It gives the impression that, although you may be separated as a couple, you are still united in your role as their primary caregivers.

3. Discuss the practicalities

Unexpected changes and uncertainty about the future can be the primary source of anxiety for kids. Taking the time to go through the practicalities of how their lives will change might ease their worries considerably and afford them peace of mind.

Discuss the living arrangements, how often they’ll get to see both their parents, the holiday season, birthdays, schooling, and so on. Encourage them to ask questions now and in the future.

4. Ask for their input

Offering them the chance to give their opinion and feedback will give back a sense of control in a potentially overwhelming situation.

5. Avoid any ugly details

Don’t talk badly about the other parent, play the victim, or say anything that may indicate to your child that you want them to take sides. The middleman position can have devastating effects on their wellbeing and ability to cope, both short-term and long-term.

Children love both their parents, and they must be allowed to continue a healthy and progressive relationship with each one over the years.

6. Open communication

Highlight that open communication is vital and that it’s okay for them not be okay. Communication is always important for a healthy family unit, but in adverse situations such as divorce, it’s essential.

7. Let them be children

Remember, children are not mini grown-ups, and they won’t communicate in the same way you would expect of an adult. Lengthy discussions and complex planning will not engage them. It may even cause them further anxiety.

Keep chats short, informal, and child-led. Allow them the space to change the subject if they need to and read between the lines. Sometimes kids communicate their feelings better with art or activity than words.

8. Know what’s normal and what isn’t

Each child will react differently. You know your child better than anybody, and you know what reactions are normal for them and which ones need more attention.

Some children may scream, shout, or act out. Others may internalize things and appear quieter than usual. There may be other cues to emotional distress, such as bed wetting, night terrors, sleepwalking, or reports of behavioral changes with their peers in-school or creche.

For advice and consultation in a time where positive support is crucial, contact one of our experienced divorce lawyers today.

How to tell your spouse you want a divorce

Deciding you want a divorce is a huge step, but finding the right time to tell your spouse can be an equally imposing hurdle. The timing will never seem right, and each discussion will be as unique as the individuals involved. Before you voice your decision to your spouse, it’s beneficial to be reflective and make sure it’s what you really want.

Are you ready for divorce?

The one goal of a divorce is to end a marriage legally. It is not a tool to begin healing a broken marriage. Nor can it be viewed as a platform to voice your unhappiness in a relationship.

There is a big difference between telling your spouse you want a divorce and telling them you’re unhappy in the marriage. Before you use the “D” word, ask yourself a few questions:

Are you ready to emotionally detach from your spouse?

The purpose of a divorce is to allow both parties to move on, financially, and emotionally. Ideally, by the time you’re telling your spouse you want a divorce, you’re already “emotionally divorced” from them in your mind. If there are still attachments and feelings, even negative ones, then perhaps you’re not ready to file.

Are you prepared to facilitate change?

Divorce proceedings will involve upheaval in all areas of your life, from finances and living arrangements to your children’s schooling. You will need to actively participate in facilitating these changes to proceed with a divorce successfully.

Having the Conversation

There is no good time to have this conversation, but there can be a “better” time to have it. A well-planned discussion in a neutral environment will have far better implications for the road ahead than an emotionally charged argument. Here are some considerations:

Time of day

Traditionally, all romantic and emotional events happen in the evening. Emotions tend to run higher in the evening, though, when exhaustion levels soar, and you are preoccupied with the events of the day. While it may seem harsh to have this conversation in “the cold light of day,” a neutral, emotionally calm environment will help set the tone for a more practical, and less reactive, discussion.

Free from distractions

It’s best to choose a time and place where you aren’t likely to be distracted by kids, relatives, colleagues, or other events. It may be tempting to have distractions as a handy excuse to exit the discussion and avoid awkwardness. It’s far better to see this first discussion through to completion to make sure both you and your spouse are on the same page.

Expect the Unexpected

As well as you know this person, you really have no idea how they’re going to react. You could meet with anger, resistance, passive agreement, or denial. You may not even see a genuine reaction for days.

It is unchartered territory, so be prepared for unpredictable behavior from your spouse and yourself. Talking about it may trigger internal reactions that you weren’t expecting or feel unprepared to handle.

Expect to have the conversation more than once

Telling your spouse that you want a divorce rarely marks the instantaneous end to a marriage. It is merely the beginning of lengthy divorce proceedings with many more similar conversations. If you’re ready for a divorce, you will be in a position to respect the emotional reactions of your spouse without engaging in them reactively.

In whatever way you choose to tell your spouse about your wish to divorce, it’s best to remain honest, transparent, and respectful of their reactions. It will set the tone for speedy and efficient proceedings, and a better outcome for everybody.

If you need more advice or information, contact one of our experienced divorce lawyers today for a free first consultation.

Why Do People Divorce?

Divorce is a familiar concept across many countries and cultures today. The steady information stream from celebrity gossip columns and social media platforms contribute to the desensitization of divorce. It is no longer perceived as a taboo subject.

In many circumstances, divorce is now considered a healthy and financially viable option for both parties to move on and start anew.

Current statistics indicate:

  • the average length of first, unsuccessful marriages in the United States is eight years
  • the divorce rate per 1,000 married women is 16.9
  • about 15 percent of marriages in the United States end in divorce, in contrast to less than one percent in the 1920s

So, are people just unhappier in their marriages today? Or, do they have more financial independence, greater freedom of choice, and more options? While statistics show an overall increase in divorce since the early part of the 20th Century, divorce rates have been on the decline since the early 1990s.

This trend is believed to be driven by the Millennial’s attitude to marriage overall. Where baby-boomers were more inclined to marry young, Millennials are now choosing to complete their education, achieve their personal life goals, and gain financial stability before entering into matrimony. This attitude seems to mirror a steady decline in divorce rates, loosely suggesting that the reasons people divorce may be financial pressures, personal unhappiness, and unfulfilled goals.

Perhaps, the shift in priorities from pleasing your spouse to fulfilling your desires takes the strain out of a marriage, allowing the relationship more breathing room.

Common Reasons For Divorce

The first topics that spring to mind when considering reasons for divorce may be financial strain or infidelity. While these are indeed significant contributors to marital breakdown, sometimes the reasons are more subtle. Relationships can and do fail because of poor communication, lack of intimacy, and a loss of personal identity.

Why Do People Divorce?

  • Lack of Intimacy: It’s no secret that after some time in a long-term relationship, the spark can begin to fade. The familiarity of domestic life can turn “amazing” into “mundane,” and this can initiate feelings of boredom, resentment, or the need to escape the relationship.
  • Loss of Self Identity: Time spent in a long-term relationship can “dilute” your sense of self, too. Your likes, dislikes, behaviors, and attitudes can sometimes merge with those of your significant other. It can lead to feelings of smothering, loss of identity, and resentment as you struggle to reassert your individuality.
  • Different Life Goals: One partner wants to retire early and travel the world; the other wants to work towards a stable life in the suburbs. A disparity in life goals only becomes apparent after the “I dos.” Compromise can assist with this problem, but sometimes the differences seem too insurmountable for reparation.
  • Financial Strain: Money troubles can put enormous pressure on a marriage. Differing attitudes towards money, overspending, and lack of financial planning can all put a significant strain on the relationship. External factors may come into play, too, with a recession or job loss putting the marriage under one stress test too many.
  • Infidelity: According to the American Psychological Association, 20 to 40 percent of divorce proceedings resulted from infidelity. Statistics on this topic are difficult to ascertain, however, and it is rarely straightforward, and many marriages continue after infidelity. Over time, they may start to show signs of strain, though, with communication breakdown, a lack of trust, and unprocessed anger or resentment contributing to a marital breakdown. 

The reasons a couple may choose divorce are numerous and personal. Whatever the reason, divorce remains a part of our culture and a frequent topic of conversation inside the Court of Law and around the dinner table. No matter how desensitized the subject, divorce is still a significant life event to be treated with dignity and respect.

If you need advice or direction through your divorce proceedings, feel free to call one of our professional divorce lawyers today.


Most people don’t know what to expect when they start the divorce process. Divorce is a complicated process that happens at one of the most vulnerable and confusing times in your life. It may be helpful to have a timeline to make you feel a bit more at ease and prepared for what comes next legally. The following timeline is intended as a general overview of what typically happens in the divorce timeline, but your situation may take longer or shorter to resolve.