A husband who spent 14 years as the sole earner while his wife managed the household cannot keep his retirement savings to himself in a divorce. In the 41 states that use equitable distribution or community property rules, retirement contributions made during the marriage are treated as marital assets, regardless of whose name is on the account.
The question, submitted to MarketWatch's advice column, captures a common misunderstanding about how divorce courts divide money. "For 14 years I have gotten up every morning and gone to work while she has been free to pursue whatever interested her," the husband wrote. What he calls freedom, family law attorneys call unpaid labor — and courts have consistently assigned it financial value.
Nine states — including California, Texas and Florida — operate under community property law, which presumes a 50/50 split of assets accumulated during marriage. The rest use equitable distribution, a standard that lets judges weigh factors like each spouse's earning capacity, the length of the marriage and contributions to the household. Neither approach rewards the spouse whose name appears on the paycheck.
The numbers involved are substantial. Vanguard's 2024 "How America Saves" report found the average 401(k) balance among participants was $134,128, with workers 55 and older averaging more than $250,000. A retirement account built over a 14-year marriage can easily represent the largest single asset in the estate — larger than a house in many cases.
Courts do not simply hand half the account to the non-earning spouse in every case. Judges may offset the retirement split against other assets, such as awarding the earner the house outright, or issue a qualified domestic relations order, known as a QDRO, to divide the plan without triggering the 10% early withdrawal penalty that normally applies before age 59½.
What the law generally does not do is count homemaking as a hobby. A 2023 Bureau of Labor Statistics time-use survey found women spent an average of 2.1 hours per day on household activities compared with 1.5 hours for men — a gap that widens sharply among couples with children. Economists have estimated the replacement cost of a stay-at-home parent's labor at $150,000 or more annually when childcare, cooking, cleaning and scheduling are priced at market rates.
Divorce attorneys say the husband's framing — 14 years of his work versus her "freedom" — tends to backfire in negotiations. Judges and opposing counsel read it as an attempt to erase two decades of unpaid contributions to the household, and it rarely changes the outcome of the asset division.
Retirement accounts can be shielded only if they were funded before the marriage, kept entirely separate afterward, or covered by a valid prenuptial agreement. Commingling funds — rolling an inherited IRA into a joint account, for example — typically converts separate property into marital property.
For couples still married, attorneys recommend a postnuptial agreement or a documented spousal IRA, which lets a working spouse contribute to a retirement account in the non-earning spouse's name. The 2024 contribution limit for a spousal IRA is $7,000, or $8,000 for those 50 and older.
