[ruben418]

Hello All. Hope all is well!
I have been separated since 2000 and officially divorced since 2004. I have my ex
Wanting half of my 401k. She just submitted paperwork this year 6/2009 and
Is wanting half of the account. Can she possibly get that, in our divorce papers
It states that that "Community interest in Respondent's(me) retirement/pension per brown formula from the date of marriage of 11//17/90 to the date of separation of 6/2000.
Can anyone help! PLEASE! I really appreciate it!
I shpuld also mention that I have custody of our two children( a 17 and a 19 yr old)

[cadillac59]

She doesn't get half. No. She gets one-half of the community contributions (measured from date of marriage to date of separation) with gains or losses on that share.

The so-called "Brown formula" is a fairly archaic expression ( I can tell you are from California) and it doesn't apply to 401(k)s anyway (or it shouldn't). We use the expression "time rule" nowadays and that applies only to defined benefit retirement plans, not defined contribution plans (a 401(k) is an example of a defined contribution retirement plan).

Your ex needs to have a QDRO prepared to divide the 401(k), so I recommend you refuse to sign it (they are usually prepared as a stipulation) if they are going to apply a time rule for division. It's a little late to be asking to modify the judgment, so it may be tough. But even if you applied the time rule it's still not going to be a 50-50 division.

I'd have to see your judgment to really give the best advice. Are you sure the "brown formula" applies to division of the 401(k) and not a pension (defined benefit) plan? If so, whoever drafted your marital settlement agreement or stipulated judgment was an idiot.

[ruben418]

Thanks for the info. I really appreciate it but I still have more unaswered questions. Can you help?

[cadillac59]

Thanx for the info. I really appreciate it but i still have more unaswered questions. Can you help?

Sure, go ahead.