Dividing up 401k plans is complicated. Sometimes 401k’s are funded with pre-marital dollars. Some are funded with post-marital dollars. Appreciation is an issue on both of them as well.
For all of those issues, that is when your forensic accountant would step in. Your lawyer will tell the forensic accountant, “These are the issues. Here is the documentation, and give me your forensic accountant’s’ opinion as to what the marital property is within this 401k.”
The forensic accountant can also take the tax consequences and separate property contributions into consideration, as well as appreciation on the accounts over the course of the marriage. Your accountant may prepare a written report or simply testify in court on those issues. Good attorneys will provide to you excellent forensic accountants to retain for this work.
The lawyer and the client are not able to successfully prove those items without having an expert. Now, if it’s a standard 401k, and there have been no additions from separate property, then you don’t typically need to have a forensic accountant discuss that in court and spend the money. A simple 401k that’s holding $500,000, that was generated during the marriage, and there is no separate property included into this, the court will typically divide it fifty/fifty, barring any financial misconduct that would be proven.