401K PLAN AND DIVORCE 6 Answers as of December 09, 2010

If neither you or your spouse have attorneys, you might be proceeding via a default, which is where one party intentionally does not appear in the case. If you and your spouse reached an agreement to this effect and you are submitting the agreement to the Court as a proposed default Judgment, the Court still has to evaluate whether the division of assets and debts meets California law (i.e., is an equal division). If it appears to the Judge that the proposed division of assets and debts is too one-sided, your proposed default judgment could be rejected.

If you have both appeared and participated in the divorce action and have simply made an agreement you are asking the Court to have entered as a Judgment, it is more likely the Court will accept your proposal.

If your matter has been contested and your agreement does not resolve the issue of attorneys' fees, there is potential the asset could be at risk as a source to pay attorneys fees. This is a very fact specific analysis, but in a very rare instance, a judge could order a jointly held asset, including a 401K, to be liquidated or borrowed against as the source for attorneys' fees. If you are ordered to pay his attorneys fees, this would likely occur at the end of the case and after you have been awarded the 401K.

Also, at some point you will receive distributions from your 401K. If your spouse is obligated to pay spousal support and/or child support, and those payments are ongoing at the time you start receiving your 401K retirement distributions, your spouse could argue that your income has changed and he could seek to modify support his support (this assumes when you receive your 401K benefits your income will increase). Whether this can occur is very fact specific. But, this is a potential way your 401K could still be "in play" notwithstanding an agreement that you are to receive one hundred percent of the asset.

Keep in mind that this response assumes that all of the contributions to your 401K were made during your marriage. If you contributed to your 401K before marriage or after separation, or if you made contributions to the 401K with money you can "trace" to your own separate property, you likely have a separate property interest in the 401K. If so, you may want to consult with an attorney before agreeing to "trade" away other assets in exchange for your husband giving up his one half of the 401K as he might not have a full one-half interest.

If, in a stipulated judgment, after final declarations of disclosure have been exchanged, your spouse waives his interest in your 401K plan, the court would not award him a portion of your 401K plan. However, if you have a spousal support or child support obligation to him, and fail to pay it, your spouse could obtain a support QDRO against your 401K plan. Also, how and when the waiver is done could affect whether or not it is enforceable. You would best be represented by a knowledgeable family law attorney in your divorce case.

if the waiver is written properly, then no.

The default answer is no...you and your spouse are able to negotiate the terms of your marriage and as long as reasonable, then that is fine.

Assuming all your disclosures were done properly, and he waives his right to any interest, whether past, present, or future, to your 401(k) as part of your written settlement agreement, and makes such waiver knowingly, intelligently, and without any kind of undue influence, duress, fraud, etc., then the answer is "no," the court will not award him any portion of your 401(k) post final judgment of dissolution.