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Divided retirement plan can keep you solvent after gray divorce

| Jan 21, 2016 | Property Division

In a modern marriage, it is common for both spouses to work outside the home and contribute to the household income roughly equally. But this is not true in every marriage. Some couples have one spouse work as a homemaker and primary child-raiser, while the other spouse earns the money. In other households, both spouses earn an income, but one may have a higher-paying job and earn the lion’s share of the dough.

People who gave up their career to get married and now, decades later, are contemplating divorce, may be afraid to take action. But those contemplating a later-in-life “gray divorce” should not assume they will end up penniless or forced to take a low-paying job to eke out an existence.

In general, most assets accumulated during a marriage will be considered marital property upon divorce. In New York, the law requires that marital property be split up between the spouses “equitably,” or fairly. This is usually true even when only one spouse contributed monetarily to the household.

Thus, important assets like retirement plans can be subject to division — at least the portion that the spouses contributed or earned during the marriage. If one of the spouses had an account like a 401(k) set up prior to marrying the other, the first spouse may get to keep the pre-marital portion, with the rest getting split up between the two.

Determining how much of a financial asset like a retirement plan is marital property, and how much is not, can be complicated. An experienced divorce attorney will work to ensure you get your fair share, while hopefully avoiding the necessity of going to court.