Legal Question in Medical Leave in Virginia

40lK Entitlements

My husband & I separated 08/2002 after 20 yrs of marriage; we are not divorced to date. Am I entitled to a portion of his 401K? I was a stay at home mom for most of our marriage. Do I need a divorce decree in order to get my portion of the money in the 40lK? He has not paid anything toward C.S. or spousal support in over 2 1/2 yrs and I am not broke & in debt.


Asked on 12/01/06, 11:51 am

1 Answer from Attorneys
Michael Hendrickson Law Office Michael E. Hendrickson

Re: 40lK Entitlements

Yes, after 20 years of marriage (whether a stay at home mom or not)you're very likely entitled to a portion of your husband's 401K(assuming its accrual during the course of the marriage).

However, to actually effect such entitlement you will need to cement your claim to such either through a PSA(property settlement agreement)whereby the parties agree to how the marital property(including the 401K)is to be divided or involuntarily by having the court decide how much of the 401K as well as the other marital property should be awarded to you through a process known as equitable distribution.

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Answered on 12/03/06, 1:41 pm


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