division of 401k

[a1badboy]

What is the name of your state? Oregon
my wife and I separated in June 2003 and are in the process of divorce now. Is she eligible for 1/2 my 401k up until the divorce is final, or does it stop when we separated?

 

[cbg]

As long as she is still legally your spouse, she MUST be the beneficiary of your 401k unless you have it IN WRITING with HER SIGNATURE ON IT that she waives her right to be the beneficiary. The administrator of the 401k may have a specific form they require for her waiver.

Once she is no longer legally your spouse, you can make the beneficiary anyone you want.

 

[a1badboy]

I think you misunderstood my question...
As my wife, she is eligible to receive 1/2 of the amount in my 401k when we divorce. We've been separated for 9 months now, and my 401k has gone up by 6 thousand dollars. Does she get 1/2 of the amount it is at when the divorce is finalized, or does her interest in it end when we separated legally in June?
Thankyou for your reply!

 

[cbg]

This is not my area of expertise, but my understanding is that she is entitled to the amount in the plan at the time of the divorce. Sorry, I know that's not what you want to hear, but that's my understanding nonetheless.

Is there some reason you're not asking your attorney this question?

 

[nextwife]

Actually, I believe she is only entitled to half the amount that accrued during the marriage. If half the total of your 401K was already in the account when you married, for example, she should not be entitled any of the premarital half, as I understand it. And you to half hers accrued during the marriage.

 

[cbg]

Good point, nextwife, I should have qualified.

I'm still curious why he isn't asking his lawyer about this.

 

[lsut1ger]

Not sure about other states statutes...

In LA (community property state)...

She would be due 1/2 of the 401K attributable to the marriage - some will settle it as 1/2 the BALANCE as of the date of the termination of community or 1/2 of the current balance if no seperate contributions were made. (can be 1/2 the cash balance or 1/2 the units in the plan)

If that gain on the fund was due to the rise and fall of the market, chances are, she's entitled to it (similiar to a house appreciating, etc.)

But there's too many variables that would need to be considered.

SPEAK WITH YOUR LAWYER!

 

[a1badboy]

Thanks. I have spoken with my lawyer, but laws vary by state. She filed in Idaho and I live in Oregon, therefore Oregon has jurisdiction over my 401. My lawyer told me to "find out" what Oregon laws are. ?? Isn't that his job?
My lawyer has just informed me that Idaho courts have no jurisdiction over my 401k, so if she wants to fight for it she'll have to do so in Oregon - perhaps I'll just wait for her to do that.
Thankyou for the responses.
a1badboy