401k and Statute 50-20 1


#1

It appears as of the summer of 2012 there is now case law that puts this issue to rest and 50-20 1 is the statute the court must follow when dividing a 401k. Is this correct?

My wife is a attorney and she wants to simply refer to section 50 instead of the exact sub section. I want to refer to 50-20 1 in our SAPS to ensure there is no confusion. If the courts must follow 50-20 1 then coverture fraction is mandated via 50-20 1 for 401ks and it doesn’t seem like a point worth arguing. However, if there is still uncertainty then it seems i should be specific.

From what I’ve read, in the past, courts have either used coverture or gone through some forensic accounting to figure it out (ie number of shares i had on date we were married). I’ve been a pretty active trader and it gets difficult to follow real quick cause of stock trades and fact that my company has changed plan administrators at least three times over the past 16 year.

In this case, from what i can tell, her part varies by about 5% depending on which method is applied. Should I be specific or is the issue clear enough where it doesn’t matter (ie its 401k so they have to use 50-20.1)?

Thanks for your response


#2

You can agree to divide the 401(k) in many ways: using the coverature fraction or a straight dollar amount. Your agreement should state specifically what the method used will be and not simply rely on the reference to a statute.