At the time of divorce, savings, investment, or retirement accounts (including 401k, pension, and IRA accounts) may be in one spouse’s name or in both spouses’ names. But the name on the savings account, brokerage account, investment account, or retirement account does not determine the ownership or proper division of the funds held in these accounts. Instead, ownership and proper division of the funds will generally be determined by factors such as whether some or all of the funds in the accounts were contributed during the marriage, or if some of the funds were contributed before the parties were married.

If the spouses live in a community property state (as opposed to an equitable distribution/common law property state), and if funds owned by one spouse were placed in an account before the marriage, and more funds were added to the account during the marriage, this commingling of separate and community property may make it necessary for the parties to hire a financial expert to determine ownership of the funds in the account. For example, interest earned and dividends paid on the separate property funds in such an account during the marriage may be community property rather than separate property. Community property states generally include Alaska, Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin.

In other states—so-called equitable distribution or common law property states—the divorce court attempts to divide the spouses’ assets equitably (fairly) and may consider a spouse’s separate property in deciding to make an unequal division of the spouses’ marital property.

In practice, the difference between the division of assets in community property states and in equitable distribution states is sometimes not as great as it may seem, as the court in a community property state may have the discretion to divide the spouses’ community property on a 60-40, 70-30, or other unequal basis.

When evaluating the division of investment or retirement accounts in divorce, it is also important to consider any tax implications for the division of the accounts.

In Wisconsin, which is a community property state, all assets acquired during the marriage are considered community property and are typically divided equally upon divorce. This includes savings, investment, and retirement accounts like 401k, pension, and IRA accounts, regardless of whose name is on the account. If funds were commingled, meaning that separate property (owned before marriage) and community property (acquired during marriage) were mixed in the same account, it may be necessary to hire a financial expert to determine the exact ownership of the funds. Interest and dividends earned on separate property during the marriage are generally considered community property. While Wisconsin courts aim to divide assets equally, they do have the discretion to make an unequal division based on various factors. Additionally, tax implications must be considered when dividing investment or retirement accounts in a divorce. An attorney can provide specific guidance on how these general principles apply to an individual's situation.