If I Take A Loan Out Against My Retirement, Is My Spouse Entitled To Less?

If I Take A Loan Out Against My Retirement, Is My Spouse Entitled To Less?

Dear Attorneys,

I want to take a loan against my retirement account so that my wife won’t be able to take as much in the divorce. I don’t have an attorney, but I heard that the loan won’t affect anything. How is that possible? Can’t she only get half of what’s left?

Sincerely,

Leaning Towards A Loan

 

Dear Leaning,

While we understand why it seems that if you take a loan against your retirement account, then your spouse would be entitled to less, it’s actually not the case. Your wife will likely be entitled to half of the marital portion of your retirement, based upon the value prior to the loan being taken. So if you haven’t done it already, it may behoove you to not take a loan out at all. If you need the loan for counsel fees, or a necessary expense, you can of course still borrow against your retirement. That said, if you do need to borrow against retirement for counsel fees, a withdrawal is a better option than a loan (usually, though there are tax consequences).  That is because after the withdrawal, your spouse would only be entitled to one-half of the remaining marital portion. Counsel fees are a valid expense and a withdrawal for such does not violate the automatic orders, whereas the loan functions as a payback and the implications are different.

Not having an attorney can make the divorce process more difficult for you, especially with questions like these. We strongly advise you to retain counsel to help you through this. Should you decide you’d like a confidential consultation, you can reach us at 203.745.3151 or info@wolfandshorelaw.com.

Very Truly Yours,

Wolf & Shore Law Group

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