Legal Question in Family Law in Illinois

Re: Dividing marital portion of 401k that grew 500%

Your attorney should be advising you here. If the decree states that you get half of the 401K then half is what you get and it's just a matter of enforcing it. Check your paperwork for the exact details.

Re: Dividing 401k that is is more than half non-marital.

I don�t know when and for how much your ex made contributions to the 401k. Those facts may bear a relation to the determination of what portion of a 401k represents marital property.

However, if it can be established that the contributions to the 401k were fairly constant during the twenty-three years of your ex�s employment, and the contributions were fairly stable in amount (even though payments grew steadily larger over time), then the court�s division of the 401k makes good sense. Let me give you an example.

If a pension having a total present value of $210,000 accumulated during a 23-year employment period, of which the employee was married for 11 years, the court would likely use the following formula to determine what portion of pension rights represents marital property: a fraction is created whose numerator is the number of years or months of MARRAIGE during which benefits were accumulated, and whose denominator is the total number of years or months of EMPLOYMENT during which benefits accumulated. In other words, 11/23 of the pension would be marital property, or $100,434 (i.e., 11/23 x 210K).

If the marital value were divided evenly, each party would receive $50,217. In your case, you are receiving 24% of the whole 401k which equals $50,400 (.24 x 210K).

The 401k could possibly be divided another way, but you would not necessarily benefit. Assume the pre-marital contribution by your ex was $50,000 and it accumulated 7% interest tax free for 11 years. The premarital contribution would be worth $105,243 today, and all of that would non-marital property. If this non-marital portion were subtracted from the whole 401k, the remaining marital portion would be $104,757. Each parties� one-half share of this marital portion would be $52,378. Again, this is not substantially different than what you received. [Note also that, because this type of division of marital from non-marital is fairly subjective, the court is not likely to employ it.]

It appears you are getting the 50% of the marital property in the 401k, just as you bargained for. Spending the money to chase this further, with no real equitable reason to divide the 401k differently, does not appear sensible.

One final point: The heading of your question states "Dividing marital portion of 401k that grew 500%." I have rewritten the heading in my reply ("Dividing 401k that is is more than half non-marital") to more closely approximate the facts you've presented.