Click on map to enlarge

Chicago By Appointment Only

19 South LaSalle Street
Suite 707
Chicago, IL 60603

(773) 276-6969

Appointments available Monday-Friday
9:00 AM - 1:00 PM
Saturday 8:00 AM - 11:30 AM
Please call for scheduling

Dividing a 401k

David Siegel: That's the process and requirement to have it done, but what I'm asking is the equitable division. How does somebody know whether they're entitled to a portion of their spouse's pension, profit sharing, 401k, or other retirement benefit incurred either before or during the marriage?

Jesse Barrientes: Certainly during the marriage, generally, as a general rule, anything, any assets acquired during the course of the marriage are marital property. Any debts acquired are marital debt. I mean, there's all kinds of things, and I don't think we have time to go in to that on the show. There are different ways to acquire that, and there are different ways to transfer, or transmute the property.

David Siegel: Let me give you just a small example.

Jesse Barrientes: Sure.

David Siegel: Husband and wife situation, Husband is working, has a pension, has a 401k, wife did not. The marriage lasted six years, now they're at the end of the marriage. What is the wife entitled to, in your opinion, of husband's pension, profit sharing, or 401k?

Jesse Barrientes: Again I would think at best it certainly would be if the division for everything else was 50 percent, but 50 percent of the marital portion – if he had the pension for 10 years before the marriage, then that is not the marital portion.

David Siegel: Sure. It's just 50 percent if that's the division of the marital portion. Then it's going to require an actuary because they're going to have to go and determine what exactly that is, because it would take the value of what it was before, and you move from there. It requires a little bit of specialized knowledge to make that determination. Many people that I speak with don't understand that this is marital property.

They feel that since it's not brought in to the house, it's not put in to the joint checking account, because it's separate and it's sitting in a profit sharing account, they feel somehow that the other spouse is not entitled to this. They don't want to give this up. This is sometimes a big sticking point. "He's not getting any of my retirement. She's not getting any of my retirement." It's another one of those misconceptions about marital property and whether it exists in retirement accounts. Are you seeing this a lot?

Jesse Barrientes: People always fight over that because they figure their security depends on how old they are, whether they're close to retirement or not. One of the other important things, and we should probably touch on that, is the real estate.

Back to Chicago Divorce Lawyers & Attorneys Family Law Firm in Illinois

Cost of an uncontested divorce case

Length of an uncontested divorce case

Parenting class

Court reporter

Entitlement to maintenance

Division of property

How property is divided