Your 401k in Divorce and Other Retirement Accounts

401k Retirement Accounts in Divorce

Retirement and pension accounts are an important part of divorce settlements because they can be one of the largest and most valuable assets many people own. Determining how to split retirement assets can be a challenge, as they may be subject to tax implications.

If you’re planning to get a divorce and you and/or your spouse has an employer-sponsored retirement plan examples are a 401k or pension plan, these assets will need to be evaluated to decide how they will be divided in the divorce. Contributions made before the marriage are the separate property of the spouse who made them, but there is the possibility that income earned during the marriage on the separate property portion can be community property.

Common retirement benefits include:

  1. Pensions;

  2. deferred compensation accounts;

  3. 401k and 403b accounts;

  4. Individual Retirement Accounts (IRAs);

  5. annuities and variable annuity life insurance;

  6. employee stock or profit sharing plans; and

  7. military retirement. answers more questions about how retirement benefits are evaluated during a divorce.

Qualified Domestic Relations Order

A court order called a Qualified Domestic Relations Order, or QDRO can be obtained in order to partition retirement/pension plans.   A QDRO is an order signed by the judge, separate from your divorce decree, that directs the retirement benefit administrator to divide the retirement benefits according to the decree. This type of order allows the plan administrator to divide up assets in a person’s retirement/pension plan. A QDRO can be created for plans that are IRS tax-qualified and covered by the Employee Retirement Income Security Act (otherwise known as ERISA). ERISA covers both defined benefit plans, such as pension plans, and defined contribution plans, such as 401(k), 403(b), or employee stock ownership plans.

What about my spouse’s social security or military retirement?

There are some separate, specific regulations that apply to dividing social security or military retirement benefits. You will need to contact an attorney in order to learn all the legal avenues in dividing these specific benefits.

More about the qualifications for spousal benefits can be found on

Spousal benefits from military retirement are based on how long your spouse served in military service while you were married. If eligible, you can receive payments directly from the service member’s retired pay. For more information, visit

Hire a Family Law Attorney who understands 401k in divorce

Kelly J. Capps, Family Law attorney, Texas family law

If you get divorced or are seriously considering it, it’s important to make a plan for how your retirement assets will be divided up. Kelly J. Capps is experienced with complex division of assets and is able to navigate the intricacies and nuances involved in your case. Capps Law Firm, PLLC offers 28+ years of experience in protecting the rights of our clients going through a Texas divorce involving the valuation and division of complex assets, such as retirement benefits.


This article does not create an attorney-client relationship. Its purpose is to educate the public about the topic of family law. This article should not be seen as legal advice. You should consult with an attorney before you rely on this information.