Have you contributed to a retirement account prior to your marriage? Are you concerned that after you are married that your retirement account will be divided equally? It is important to keep records to show how much the value of the account was prior to your marriage in the case of a divorce. As in the case discussed here.

In the case of Saucier vs. Saucier, the parties were married for 21 years before the husband filed for divorce. At the trial of the divorce the husband testified that he began working for Mobile Gas Company (MGC) in June, 1979 and that he routinely contributed to his 401(K) for the 18 years prior to his marriage to his wife. After he married his wife, he continued to contribute to the 401(K) until he left his employment in October, 2012.

The parties borrowed money from the husband's 401(K) on two occasions to pay marital debts. After the husband left his employer the husband moved his 401(K) into an IRA account that was being held in the form of an annuity. The amount rolled over from the 401(K) was $182,452. There was not any evidence introduced regarding the amount of the 401(K) at the time of the marriage or the value of any contributions made by the husband either before or after the marriage. The trial court entered the judgment awarding the wife 1/2 of the annuity of approximately $91,000.00.

The trial court explained that it believed that the husband rolled over his 401(K) retirement into a new account, the money in the annuity became part of the marital estate, subject to division. The husband appealed and the appellate court upheld the trial court's decision.

The appellate court relied upon §30-2-51(b), Code of Alabama, provides that the marital state includes any interest either spouse has acquired during the marriage and any retirement benefits.

The court ruled if a party asserts that his or her interest in any retirement benefits is excluded from the marital state, he or she bears the burden of proving the fact and the value or amount of the excluded interest. Also rolling over a 401(K) retirement account into an individual retirement account during the marriage results in the ownership owner spouses acquisition, receipt, accumulation or earnings of the underlying interest in the retirement benefits during the marriage.

As in this case, the husband bore the burden of proving if any of his interest in the annuity was excluded from the marital state and the value or amount of the excluded interest here he failed to do so. Without crucial evidence the trial court could not determine what portion of the retirement funds in the annuity should be excluded from the marital state.