Legal Question in Family Law in New York

Majuskas - Pension

I understand the formula for determining how much a spouce will recieve. What I am unable to find out is if you have the option of dividing cleanly a 401K account pre retirement. In other words, can you split the account, she takes her share and puts it in another account, and you keep yours, as opposed to splitting the payouts when you retire?

Is there any advantage to either method? I have about 15 more years to retirement.


Asked on 2/09/06, 5:20 pm

1 Answer from Attorneys
Glenn Dornfeld Glenn E. Dornfeld, Esq.

Re: Majuskas - Pension

Yes, you can split the account now. In fact, most divorcing couples split the 401(k) around the time of divorce rather than later on.

Typically, the Plan will set up a new account for the non-owner/non-employee, under the same rules and conditions as the owner/employee's account.

The funds in each account will be subject to the investment decisions of the owner of that post-division account: that is, you do what you want with your share, she does what she wants with hers -- again provided that you follow the rules of the Plan.

Any money that either of you withdraws from your respective separate accounts would be subject to income tax, and likely also to penalties -- although early withdrawal penalties do not apply in certain situations.

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Answered on 2/09/06, 5:39 pm


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