How to Determine Value of 401(k) in a California Divorce

By Kay Lee

California is a community property state. This means that when couples are dividing property in a divorce, anything earned or obtained during the period of marriage is considered jointly-owned property. Accordingly, unless otherwise agreed upon, a 401(k) account earned during the marriage is split equally between the parties. Since the value of a 401(k) plan is not static and continuously earning investment income, and there are both state and federal laws that mandate specific actions, certain rules apply as to how the account is valued for distribution as part of a divorce.

Step 1

Negotiate with your spouse or partner to determine how you will divide your assets. While the court has jurisdiction to divide a couple’s property during divorce, a couple will typically make those decisions prior to the court issuing a formal order of distribution.

Step 2

Review the terms of the 401(k) plan or Summary Plan Description to determine how to contact the plan administrator, if you don't already have that information. The plan or SPD will include instructions explaining how to request information related to a qualified domestic relations order -- the name under federal law for the document required to divide retirement benefits, such as a 401(k) plan.

Divorce is never easy, but we can help. Learn More

Step 3

Determine the applicable dates for determining the value of the community property portion of the 401(k) plan. If any of the 401(k) was earned prior to the date of the marriage and after the date of separation, that portion of the 401(k) is not community property and belongs only to the spouse who earned it.

Step 4

Request the value of the account as measured by the period of community property, i.e. from the date of the marriage until the date of separation, unless some other period has been decided by agreement between the parties. This often occurs when there has been a sharp increase or decrease in the account value since the date of separation.

Step 5

Complete forms FL-180 and FL-348, entitled "Judgment" and "Pension Benefits – Attachment to Judgment," which will require you to list the dates of your marriage and separation and the contact information for the plan.

Step 6

Deliver the executed forms to the plan administrator, either in person or through the mail. You will need to provide proof of service to the court.

Step 7

Determine whether there are any local forms that must be executed. The local forms would be any required by the court in which your divorce is being heard.

Step 8

Follow up, if necessary, if you have not received any information from the plan administrator within a reasonable time period.

Step 9

Proceed with the court hearing to dissolve the marriage and distribute the marital property until the court issues a final order.

Divorce is never easy, but we can help. Learn More
The 401(k) and Divorce Law in Arizona



Related articles

Massachusetts Laws on Divorce & 401(k)s

If you and your spouse divorce, not only do you have to separate your lives, you also must separate the property you acquired together. In Massachusetts, 401(k)s and other retirement accounts are considered property. This means that your spouse may be entitled to a share of your account if you acquired it, or contributed to it, during your marriage.

Pension Divisions During Divorce in Delaware

If you used a pension to save for the golden years with your spouse, she still might benefit if your marriage ends in divorce. In Delaware, if your pension was acquired or contributed to during the marriage, the court is likely to give your spouse a share of it. However, how big or how small that share is will depend on what the court finds to be equitable, or fair, after looking into your individual and marital circumstances, such as how long you've been married.

How to Split a Pension Plan in California in a Divorce

Though you may not be able to receive benefits from your pension plan until you reach retirement age, your plan typically can be divided up in a divorce proceeding long before your retirement. California courts can split pensions and other retirement plans just as they can split other types of property you and your spouse own. However, retirement plans can require additional paperwork to legally split them.

Get Divorced Online

Related articles

How to Divide up a 401(k) After a Divorce

The laws of each state govern the division of property in a divorce. Although many divorces result in a 50/50 division ...

How to Divide Pension Income in a Divorce in Illinois

Illinois couples must split their assets as part of their divorce, and these assets can include many types of ...

What Happens in a Divorce When Both Own a 401(k)?

One of the most complex decisions a divorcing couple faces is how to divide retirement savings accumulated during ...

Is QDRO Necessary in the Dissolution of a Marriage?

A Qualified Domestic Relations Order, or QDRO, is not always necessary in a marriage dissolution. A QDRO is required ...

Browse by category
Ready to Begin? GET STARTED