Is my ex-wife still entitled to a share of my 401Kif we have been divorced for over year?

02/07/2007 - Category:Divorce - Separation Agreements - State: CA #457

Full Question:

I have been divorced for a year and a half. Is my ex-wife still entitled to a share of my 401K?

Answer:

This should have been covered in some manner by the divorce decree.

To the extent that a married person accumulates an interest in a pension, retirement, profit sharing or other employee benefit plan during the marriage, it is community and subject to division in the Dissolution of Marriage. The law gives the judge the power to award a spouse his or her pension plan, based on its "present value," or to "reserve jurisdiction" to award each spouse a proportionate share of the benefits when they are paid.

Generally, Pension Plans are divided in one of two ways: a "reservation of jurisdiction," a "cash-out."

Reservation of Jurisdiction. This is the most common way in which Pension Plans are handled. Under reservation of jurisdiction, the court orders that when the employed spouse retire the other spouse will receive a percentage of each pension check. This percentage is calculated by dividing the years when the spouses lived together as husband and wife by the total number of years that the employed spouse has been participating in the Pension Plan. The result of that division is the community property percentage of the Pension Plan. For example, if the husband had 20 years of contributions into a Pension Plan, with 10 of those years coinciding with the years he lived with his wife, the community property share of his Pension Plan would be 50% (10 divided by 20). Thus, the wife would be entitled to 25% of the husband's pension checks (1/2 of 50%).

Under a reservation of jurisdiction, the spouse can elect to receive his or her share of the employed spouse's pension benefits at the earliest time that the employed spouse could retire. This means that even if the employed spouse chooses not to retire, he or she still has to pay to the other spouse what that spouse would have received if the employed spouse had retired. For example, if the husband is eligible for "early retirement" at age 55, but he chooses not to retire at that time, his ex-wife can demand that he pay her the amount of money that she would get if he actually retired. However, if the wife makes such an election, she does not receive any cost of living increases after that date.

The Federal Retirement Equity Act of 1984 created what is known as the "Qualified Domestic Relations Order," or "Q.D.R.O." (pronounced "quadro"). Where the Court makes orders concerning a spouse's retirement plan and the order is prepared in the correct form, the Federal law requires the employer to comply with the terms of the order. The preparation of a Q.D.R.O. can be time consuming and complicated, and, consequently, expensive. However, it is a necessary step in the dissolution process.

Several companies have been formed for the sole purpose of preparing Q.D.R.O.s. For a fee, these companies prepare the O.D.R.O.'s and submit them to the pension plan administrators.

Cash-out

The other method of dealing with Pension Plans involves obtaining "actuarial evaluation" of a Pension Plan. An actuary is an expert who deals with statistical and financial evaluations of insurance policies, annuities and Pension Plans. By reviewing the Plan description as well as the accumulations on the account of the employed spouse, the actuary can determine the "present value" of the Pension Plan.

For example, if the husband's Pension Plan provides that he will receive $1,000 per month upon his retirement at age 65, and the husband is presently 45 years old, the actuary estimates how much money would have to be deposited in an interest-bearing account now to yield interest income in 20 years of $1,000 per month. This process includes an estimation of the long-range interest rates that would be in effect over that period of time. With a cash-out, the employed spouse receives his or her Pension Plan, with other community property assets being awarded to his or her spouse to result in equal division of community property.



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02/07/2007 - Category: Separation Agreements - State: CA #457

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