Q: My spouse is refusing to split her 401k in the community property division. My question is: Can she actually stop it?

A: In a divorce, the parties’ community property is divided in a manner that is “just and right.” That does not mean that each asset individually is divided 50-50. It is not uncommon for each spouse to be awarded his or her own employee benefit plans, like a 401k.

In some cases, one spouse is entitled to a disproportionate division of community property. There are several factors that can entitle a spouse to a disproportionate division, including but not limited to fault in the break-up of the marriage.

With respect to employee benefit plans, sometimes one spouse has withdrawn or cashed out his own plan while his spouse did not. There could be justification to allow one spouse to keep her 401k if the other spouse cashed out and then squandered his.

Each spouse is also entitled to keep that spouse’s own separate property. Any portion of a 401k contributed prior to the parties’ marriage plus any appreciation in value is that spouse’s separate property.

Your divorce attorney should be able to explain to you any argument your wife’s attorney is making to justify her keeping all, or a majority, of her 401k.

I note that a division of a 401k will likely require the preparation of a qualified domestic relations order (QDRO) that satisfies the plan administrator of the 401k plan. Even some experienced family law attorneys prefer to subcontract out or delegate the preparation of a QDRO. So this is definitely not something you would want to try without an attorney.