I would like to know IF a spouse can go after your 401k and/or retirement funds IF separated BEFORE 10years of marriage?? My husband left me 2 months prior to our 10th wedding anniversary and is trying to go after my 401k/retirement monies. I keep hearing that you HAVE TO BE MARRIED 10YRS. BEFORE A SPOUSE IS ENTITLED TO OTHER SPOUSES MONIES - IS THIS TRUE OR FALSE AND WHERE CAN I FIND THIS IN WRITING TO SHOW MY DIVORCE ATTORNEY?? WE ARE ALREADY DIVORCED BUT IN E.D. COURT NOW. PLEASE RESPOND ASAP AND THKS VERY MUCH!!!

ps…judge has ALREADY ruled for an UNEQUAL DISTRIBUTION IN MY FAVOR, however, judge and attorneys are still fighting over the 401k money issue. I only have $60k and husband ABANDONED me leaving me with NO income. I had just retired one year before separation with American Airlines with 21years where I made $25/hour. Now, Im working as a sub teacher 2-3days/week making $9/hour. I am on $88/month food stamps and crisis help for heating costs this winter. My husband NEVER put one dime into my 401k and does not deserve anything. He has destroyed me mentally, emotionally and physically. My health has deteriated drastically and had to be put on antidepressants, xanax for panic attacks and now awaiting an endoscopy as I have severe stomach pain daily which is hopefully not any worse than a bad ulcer. HUSBAND’S earning capability is over 100k/year and I cannot even start drawing my retirement until 2014!! Husband is only age 45 and I am 58 and I HOPE that judge does NOT give him what little money I have for my “golden years”!!..THANKS AND GOD BLESS YOU FOR RESPONDING!!!

patsy ray


Retirement accounts are marital property, and any amount saved or matched during the course of the marriage (prior to separation) is martial property and thus divisible. The military requires the marriage last ten years prior to a spouse becoming eligible for benefits but that is not the case with civilian plans.

N.C.G.S 50-20 states that martial property includes all vested and non vested pension, retirement and other deferred compensation rights and vested and non vested military pensions under the federal Uniform Services Former Spouse’s Protection Act.

It seems as though you are entitled to alimony as well.


Erin, thks so much for your prompt response!! so it appears the 10yr rule only applies to military. I AM getting $300/month alimony reduced from $700/month as his employer reduced his pay in half to keep from laying him off…patsy ray


Yes that’s correct. I am assuming he is non-military?