W. Stephen Hernsberger
Attorney at Law
phone: (512) 607-6336
fax: (512) 519-1598
email: stephen@401k-qdro.com


Practice limited to Retirement in Divorce

How to Divide a 401K

The method that you select to divide the 401K must be the same in your Divorce Decree or Settlement Agreement and your QDRO. The QDRO simply mirrors what the Judge orders in your Divorce. For example, if the Divorce Decree awards the spouse a percentage of just the marital portion of the 401K, the QDRO cannot award the spouse a percentage of the entire 401K.

Please double-check your Decree or Settlement Agreement before you complete this section.

There are 3 ways to divide the 401K in your divorce and QDRO.

Specific DOLLAR AMOUNT . . .

The Spouse can receive a specific dollar amount from the 401K.

For example, the parties might agree that the Spouse will receive $10,000, regardless of what the total value of the 401K is.

Worksheet Instructions: If the Spouse is going to receive a specific dollar amount from the 401K, for example $10,000, check "Specific Dollar Amount" and state the dollar amount in the blank provided.

% of the ENTIRE ACCOUNT BALANCE . . .

The Spouse can receive a percentage of the entire 401K, not just the portion earned during the marriage.

For example, the parties might agree that the Spouse will receive 50% of the total value of the 401k on the date of divorce.

Worksheet Instructions: If the Spouse is going to receive a percentage of the entire 401K (not just the portion earned during the marriage), for example 50% of the value of the 401K on the date of divorce, check "% of the Entire 401K Account" and state the percentage in the blank provided.

% Accumulated DURING THE MARRIAGE ONLY . . .

Sometimes the Employee had already contributed money to the 401k before the parties married. You can exclude that portion of the 401k from the division. In other words, the Employee will keep 100% of the 401K that was earned before the parties married. Only the portion contributed after the marriage will be divided.

Worksheet Instructions: If the non-Employee-Spouse is going to receive a percentage of the 401K that was accumulated DURING THE MARRIAGE ONLY (401k contributions and earnings before the marriage are excluded), click "% of Just the Marital Portion of the 401K Account" and state the percentage in the blank provided.

Special Circumstances . . .

If you want to divide the 401k in a manner that doesn't fit any of the 3 methods described, please describe it in the section labeled "Comments and Special Instructions" at the bottom of the page.