Legal Question in Family Law in Maryland

Re: 401 k

Under Maryland law, that portion of a retirement fund which accrues during a marriage is considered to be marital property. That means that it is subject to equitable distribution by a court as part of a divorce proceeding. Equitable doesn't necessarily mean equal, although that is usually the starting point when a court considers how to divide up property. But the court can also take into consideration the length of the marriage, the economic circumstances of the parties after the divorce, and what led to the break up of the marriage.

If part of your benefits accrued before you married, and if they will continue to accrue afterward, there is a formula that must be used to determine the marital part, because the "before" and "after" parts are all yours.

If you are not planning to start receiving your retirement benefits right away, the court will probably award your ex a percentage (50% or less) of the "marital" part of the benefits at such time as you elect to start receiving them. Of course, you can negotiate with her to divide up assets in such a way that you retain your benefits by giving up other assets in exchange if she's willing to do that. You would be well advised to retain an experienced family attorney to assist you with this matter.