Question #123: I have been married for 11 years and have been contributing to a 401K at my place of employment. My husband has always refused to invest in a 401K through his workplace or any other. – stating that he “could not afford to invest the money”. I have ALWAYS paid AT LEAST 50%, sometimes more to the monthly household bills. Now since the divorce has been mentioned – he claims that he will sue me for my 401K (along with take my daughter, have me committed and burn the house down). Can he just take 1/2 after he refused to invest in one?. Should I quit investing, or put the money in something else?

Marital property is defined as all property acquired during the course of the marriage
by either party, no matter in whose name the property is held, other than property
acquired by gift, inheritance or bequest.
Your 401K is such property regardless whether your husband refused to have one of his own;
it appears to be marital property in which your husband will have a claim. Shifting the money to another account or contributing future income or assets to a different account will not help. He will have an interest in any such account. The only resolution is to enter into a post nuptial agreement or perhaps separation agreement, depending on your relationship, in which you spell out exactly what is marital and what is to be separate property. This must be done by a competent, experienced attorney in order to be sure that it will have legal authority.

If you’re living in the New York City metropolitan area, I suggest you call me at 212-370-1660
to discuss the matter at greater length.

Leonard M. Weiner, Esq./Divorce Solutions