Legal Question in Family Law in Texas

Anything you and your wife accumulate during the period of the marriage is, by definition, part of the marital estate and subject to equitable division. Most times, the result is an equal distribution of assets and debts between the parties (50/50). While you and your wife may not have lived together for the last 5 years, your marriage continued and so your wife could (and probably will) validly claim she's entitled to half of any amounts accumulated in your 401(k) for the past 10 years.

However, divorce courts are courts of law AND equity. Simply put, the court wants to do what is just, right and fair. There's room to argue that giving your wife half would be unfair, especially since you were living apart from her and not benefiting from the marriage relationship. Depending on the actual circumstances surrounding who was paying for what for the past 5 years, your situation may be exactly the kind to argue for an unequal distribution of your assets (instead of the normal 50/50) and that the 401(k) should be divided with you receiving more than your wife.

I hope that helps. Good luck to you.