Matthew Lane & Associates, P.A.
Palm Beach Gardens, West Palm Beach And Wellington, Florida Offices 561-328-1095

Divorce 401(k) Retirement Accounts Wellington, FL

In making a division of property and assets in a divorce proceeding in Florida, the award of a ½ ownership interest in property as of a particular date entitles the recipient to share in the gains and losses in the account on the date of distribution. In Graham v. Graham the Florida Court of Appeal stated that: "JoAnn Graham appeals an order granting post-judgment relief on grounds it fails to effectuate the marital settlement agreement she and Nathaniel Graham entered into in September of 1994 in anticipation of the dissolution of their marriage later that year. She maintains the trial court erred both in calculating her share of the former husband's 401 (k) account and in calculating her share of his Army pension. Persuaded she is right in both instances, we reverse and remand. 

The parties' twenty-year marriage ended with a final judgment of dissolution of marriage, entered on December 22, 1994, which did not specifically address either Mr. Graham's Army pension or his 401 (k) account. The judgment ordered instead that the "Agreement entered into by the parties at mediation is hereby confirmed and made a part of this Final Judgment of Dissolution of Marriage, and the parties shall comply with its terms and conditions in their entirety. In September of 1994, the parties had signed a typewritten marital settlement agreement that gave Ms. Graham "10/23 of the Husband's Army retirement as of the date of this agreement...and 1/2 of the Husband's 401K retirement as of July 24, 1993'...

The phrase "1/2 of the Husband's 401K" describes a one-half ownership interest in the 401 (k) account itself. Half ownership of any asset, real or tangible personal property...plainly means something other than entitlement to a fixed sum of money. The same is true of intangible personal property, the value of which may also fluctuate. If the parties wanted to agree to a specific dollar amount, they could have done so easily enough by specifying a sum certain...This ownership entitles her to gains (and puts her at risk of losses) on her share. See Hoffman v. Hoffman, 841 So. 2d 695, 696 (Fla. 4th DCA 2003) (holding wife's entitlement to a specific share of her husband's IRA account carried with it an entitlement to an equal proportion of the gains and losses until distribution)."

To speak with an Wellington, FL family law attorney, contact Matthew Lane & Associates, P.A. at (561) 651-7273

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