You and your spouse have a retirement fund, and you thought you'd get to use it to enjoy your golden years without worrying about money. You dreamed of vacations in the winter and long summer afternoons on the porch.
Now, you and your spouse are splitting up. Suddenly, you start worrying about that retirement fund. It's technically your spouse's fund. Is it marital property, or are you going to lose it?
Much of it may depend on when it started. If your spouse already had a 401(k) when you tied the knot, that may be separate property. Even if it is, you may be able to claim that any increase due to earned interest is marital property.
If the retirement account was set up after you wed, that money is probably marital property, barring any outside influence -- like a prenuptial agreement.
The reason for this is not just that you were counting on the money, but that you may be able to claim that you "lost" that money while you were married.
Maybe the money was taken out of your spouse's paycheck directly, for instance, and put aside. You gave up the short-term earnings to plan for the future. Had you known the divorce was coming, you wouldn't have allowed that to happen. You still have a claim to that money since it was earned during the marriage and was therefore owned by both of you.
Dividing up retirement funds can be complex, and it's critical to know your legal rights. Remember, that fund could be one of your biggest assets. It may well determine the course of your financial future.
Source: Forbes, "How Divorcing Women Should Handle Retirement Accounts And Pension Plans," Jeff Landers, accessed Sep. 14, 2017