What happens in a 401(k), the amount that you own, the balance of the fund at the time of the date of your marriage, is your separate property, and that’s carved out as not something that your spouse would share in. What your spouse would share in is the accumulation in value in that 401(k) from the date of the marriage all the way to the date of the commencement of your action for divorce.
At that point, the statement is looked at to see what the value of the plan was, and of course, they subtract the earlier date of marriage value from the date of commencement value, and that's the appreciation. From the time of the date of commencement to the final distribution of that 401(k), the money that the titled spouse puts into their 401(k) through withholdings from their paycheck, what have you, are not shared with the other spouse. That money is kept separate. That’s how a 401(k) is divided.
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