Legal Question in Family Law in Oregon

Re: Divorce and 401k entitlement

QUESTION:

I have just filed for divorce two weeks ago. My soon to be ex-wife has been served. I do have a 401k. I understand after 10 years of marriage, she is entitled to half of my 401k. We will be married 10 years next month. Can she stall by contesting in order to reach the 10 year mark and receive half of my 401k?

ANSWER:

There is no "10-year" rule regarding your 401(k). Rather, the increase in the value ("growth") of your 401(k) that occurred during the years of marriage (regardless of length of marriage) is considered as "marital property."

Absent some justifiable reason for doing otherwise, your spouse is entitled, upon divorce, to 1/2 of the increase in the value of the 401(k) that occurred during the marriage.

So determine the account balance as of date of marriage and subtract that figure from account balance as of date of divorce. Then divide by two. That will give you the amount spouse is entitled to receive.

To implement the division of a 401(k) account incident to a divorce, you will need a special type of court order known as a QDRO ("quad-dro") -- a Qualified Domestic Relations Order. This type of order must meet some very exacting and technical requirements and are generally prepared by a lawyer. But not all lawyers do them. I do. So if you need a QDRO, give me a call. 503.224.8884.

LAWRENCE D. GORIN

http://www.divorcesource.com/OR/pages/ldgorin.html

Law Offices of L.D. Gorin

521 S.W. Clay St., Suite 205

Portland, Oregon 97201

Telephone: 503.224.8884

Fax: 503.226.1321

E-mail: [email protected]