Brian D. Perskin & Associates

Divorcing an Unemployed Spouse

Before you get a divorce in New York, you need to look at all the ways you will be affected, especially when it comes to finances. Of course, the results should not sway your decision to get a divorce, but it is nice to know what you are facing. If you have specific questions about your case, come to Brian D. Perskin & Associates, P.C. Until then, consider some ways your retirement accounts may be affected.

New York is an equitable distribution state, which means that not everything will be divided 50/50 like it would in community property states. However, in many cases, anything you have accrued within retirement accounts during the marriage will need to be split with your former spouse.

For example, if you opened a 401k before marriage, anything you put into it before and after the date of your wedding will be given to you. However, any deposits made between the date of the wedding and the date of the divorce will likely be split evenly. If you cannot prove that you opened the account before you got married, your former spouse may be entitled to half of the total you have in there, so you are encouraged to find proof of the opening date before you file.

If your ex is awarded part of the retirement account, he or she may choose to cash out at the current value. However, you can also both choose to create separate accounts and just transfer the money so you each have a retirement account.

If your ex decides he or she does not want any part of the account, you do not have to split it. But you will likely have to make compromises elsewhere, such as giving up a car, the house, or other assets that your ex is interested in. Your ex may also request that you buy out his or her portion of the retirement account, so be prepared for this option if you would prefer to keep your account intact instead of splitting it.

Keep in mind that if you attempt to withdraw money from your retirement account, such as a 401k, before the divorce is final, you will have to return it or pay the difference to your former spouse. If you suspect that your ex has withdrawn money from his or her account, let your lawyer know immediately. This can keep you from losing money that is rightfully partly yours.

If you have questions about retirement accounts and divorce in New York, we invite you to contact us. The laws change frequently, so what you read online may be outdated or not specific to your situation. In addition, New York's laws differ from other areas, such as community property states, so you need information that takes your location into account. Call us today at 646-759-9392 or 718-875-7584 for the updated facts on retirement accounts and divorce.