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By: Bailey Vos
In the great division that is divorce, many couples are caught off guard when they’re required to divvy up what they assume to be rightfully, wholly, 100% theirs.
One of these grey areas that can sneak up on people is their retirement account. Even if your 401(k) is in your name, your spouse may be entitled to part of it.
The details of that division largely come down to when the funds were accumulated and whether they are considered marital property. Here's what you need to know.
In a Michigan divorce, the courts focus on what’s equitable when it comes to distributing marital assets, but what exactly counts as marital assets during a divorce?
Marital property generally includes anything acquired during the marriage, such as:
So, a 401(k) accumulated during the marriage is often considered marital property, even if only one spouse contributed to the account. This is because the courts view retirement savings earned during the marriage as part of the marital estate.
Assets up for division are not limited to the 401(k) either. Other retirement accounts, including pension benefits, IRAs, Roth IRAs, deferred compensation plans, and other retirement investments may also be considered marital property and thus subject to division.
What About Money Saved Before the Marriage?
The courts treat separate property differently from marital assets. Separate property (what’s yours to keep) may include:
In many cases, retirement contributions made before the marriage may be considered separate property. For example, if you had accumulated $100,000 in a 401(k) before getting married, that portion may remain yours.
However, contributions made during the marriage and the growth associated with those contributions are often considered marital property.
Accurately determining what portion of an account is separate versus marital may require reviewing years of account statements, contribution histories, and investment performance records. And the longer the marriage, the more difficult this analysis can become.
The portion of your retirement account that is considered marital property does not necessarily get divided 50/50.
Michigan courts focus on what is equitable, not simply equal in the hard-and-fast sense. When deciding what’s equitable during divorce, courts may look at factors like the length of the marriage, each spouse’s income and earning potential, contributions to the marriage (both financial and non-financial), the needs of each spouse, health and age, who will have primary responsibility for minor children, and whether either spouse wasted or hid assets.
These factors help ensure that the final outcome is balanced and sustainable for both parties, and as a result, the division of retirement assets can vary from case to case.
Retirement accounts are different from some other asset classes in that they generally cannot be withdrawn and handed over like cash. Instead, many employer-sponsored retirement plans require a legal document called a Qualified Domestic Relations Order (QDRO).
A QDRO instructs the retirement plan administrator on how the account should be divided between spouses. When properly drafted and implemented, a QDRO can transfer retirement funds without triggering the early withdrawal penalties and tax consequences that would normally apply.
Many people enter divorce assuming their retirement accounts are protected because their name is on the account. Others assume they'll automatically receive half of their spouse's retirement savings.
Neither assumption is always correct.
A big part of protecting your financial future during divorce is understanding what constitutes a marital asset and how those assets will be equitably distributed.
Property division involving retirement accounts can quickly become complex, especially when separate and marital funds have been mixed over time.
At McKinney Vos PLLC, we help Michigan clients understand their financial rights, evaluate retirement assets, and work toward fair property division solutions that support long-term stability.
If you're concerned about how a 401(k), pension, or other retirement account may be treated in your divorce, contact our team today to schedule a consultation and discuss your options.
Can my spouse get part of my 401(k) in a Michigan divorce? Yes, potentially. Contributions made during the marriage are generally considered marital property and subject to division, even if the account is only in your name.
Is money I saved in my 401(k) before marriage protected? Often, yes. Contributions made before the marriage may be considered separate property, though growth and contributions during the marriage are typically treated as marital.
Does my spouse automatically get 50% of my retirement account? No. Michigan courts divide marital property based on what's equitable, not necessarily equal, weighing factors like the length of the marriage, each spouse's income, and contributions to the marriage.
What is a QDRO and why do I need one to divide a 401(k)? A Qualified Domestic Relations Order (QDRO) instructs a retirement plan administrator on how to divide the account between spouses without triggering early withdrawal penalties or tax consequences.
What other retirement accounts can be divided besides a 401(k)? Pensions, IRAs, Roth IRAs, and deferred compensation plans may also be considered marital property and subject to division.
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Bailey Vos is a Michigan family law attorney and co-founder of McKinney Vos PLLC, helping families in Grand Rapids and throughout Michigan navigate divorce, custody, and other complex family matters.
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