Question:  My wife and I are getting a divorce. We were talking about splitting up some of my retirement accounts. And I want to know what's going to happen to my 401(k). That's my largest retirement account. I am fine with giving her some of it and maybe half of it or even more if it's part of the negotiations for the divorce.

We have a house, bank accounts and investments. We've been married over 35 years and she has never really worked so I know I'm going to be paying her money, and I'm fine with that.

I've built up the 401 (k) over many years, really a number of decades. I've been putting money in it for a long time. I've worked for the airlines, then at an advertising agency and at a software company. I've worked in Atlanta, Alpharetta, Duluth and Woodstock.

I was planning on using the 401 (k) in retirement with my wife but she wants to get a divorce. She said my drinking's become a problem and she thinks I might have some mental issues which I won't get treatment for. I think she's wrong, but if she wants a divorce then she can have one.

I really want to know what happens to my 401 (k) in a divorce and how it can be split. I know there are rules governing what happens to a 401 (k) in a divorce situation. I'd like to find out from a divorce attorney so I know what's happening and what exactly I need to do.

P.R. in Sandy Springs, Georgia

Answer:  To apportion a 401 (k) after a divorce the parties would use a QDRO (a Qualified Domestic Relations Order).

A 401(k) is a very popular retirement savings plan sponsored by an employer. It is tax-advantaged because it lets workers save and invest a piece of their paycheck before taxes are taken out. Taxes aren't paid until the money is withdrawn from the account in the future for retirement.

In a divorce, it is commonplace to negotiate a split of the 401 (k). Sometimes it is split equally, other times it is not and the money is divided between the parties pursuant to a negotiation (for example it is divided 60/40 or 70/30 or 80/20). The division of the 401 (k) is determined by the parties and their divorce lawyers. However the 401 (k) is split, a QDRO is necessary to do it.  

Not all divorce attorneys prepare QDROs. But it is very important that the QDRO be prepared properly. If it isn't written correctly, it will be rejected or it may cause a distribution of the money that wasn't contemplated by the parties.

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