How to Determine Value of 401(k) in a California Divorce

Determine the value of your 401k account.

When filing for divorce in California, one or the other party may have difficulty valuing community property investments such as a 401k account. Even if you have an amicable divorce, investment values are needed for an equitable distribution of the community property. To determine the value of a 401k plan in a California divorce, you need to follow certain protocols and file a deposition subpoena for business records

Instructions

1. Determine what bank or company holds the business records for the 401k account. Do not assume that the address from which you received statements is the address to send the subpoena.

2. Identify the documents you require and from what time frame. For instance, you may only need 401k value information from the date of separation to the present, or you may need to go further back.

3. Obtain the following forms either from the Family Law Facilitator at your court, or online at the California Courts--Self Help Center (link in resource box):
   1. Deposition Subpoena for Production of Business Records, form no. SUBP-010
   2. Notice to Consumer or Employee and Objection, form no. SUBP-025

4. Fill out the Deposition Subpoena for Production of Business records, form no. SUBP-010.
   •In the top left box with the heading "Attorney or Party without Attorney," list your name and address and phone number. List "IN PRO PER" after "Attorney For:"
   •List the name and address of the court where your case is being heard in the box directly below the attorney box.
   •List the names for petitioner and respondent.
   •List your California divorce case number in the "CASE NUMBER" box.
   •In the first field, after THE PEOPLE OF THE STATE OF CALIFORNIA, TO, you will put the name and address of the company that you are requesting the 401k account records from. For example: Custodian of Records, XYZ Company, 1235 California Divorce St., Happy Town, CA 12354
   •In box 1, list the name and address of the person to whom the business documents will be sent. The date that you list in this box, to be on the safe side when filing in California, should be 35 consecutive days after the date you issue the subpoena.
   •Mark box "1.a."
   •Under item "3," the wording should read something close to this to determine the value of the 401k account: Any and all financial statements, investment records, or any other related documentation for the XYZ Company 401k plan for the participant (name of the plan participant), from the date: August 1, 2008 through present.
   •Sign, date and type in your name in the appropriate fields on the bottom of the subpoena.

   Leave page two of the SUBP-010 blank with the exception of the Petitioner/Respondent/Case number boxes.

5. Fill out form SUBP-025, Notice to Consumer or Employee and Objection.
   • The heading information will be the same as form SUBP-010.
   • List the name and address of the 401k account participant after "TO (name):"
   • Under item 1. list the name of the person noted in box 1 of form SUBP-025, and use the date of issue, not the date the 401k documents are due.
   • Also under item 1, list the name and address where you will be sending the Deposition Subpoena.
   • Date, print or type your name and sign the SUBP-025.
   • On page two of SUBP-025, fill out the petitioner/respondent/case number boxes.
   • Choose how you will serve a copy of the subpoena, either personal service, or mail. Check the appropriate box. If by mail, the subpoena may go either regular or Express Mail. Whether you choose personal service or mail, someone who is 18 or over and is NOT a party to this action must fill out the proof of service. The person doing the serving must follow the directions on the SUBP-025.
   • If the other party in your divorce proceeding is represented by an attorney, then the attorney of record is served.

6. 

   Photocopy the subpoena.

   Make a copy of forms SUBP-010 and SUBP-025. Keep the original of the Deposition Subpoena for Production of Business Records with a photocopy of the Notice to Consumer or Employee and Objection.

7. Serve the original Notice to Consumer or Employee and Objection with a photocopy of the Deposition Subpoena for Production of Business Records to the other party if IN PRO PER, or to his attorney of record.

8. Wait 10 consecutive days if the notice was sent by regular U.S. mail. Wait five calendar days if the notice was served in person, or wait seven calendar days if served by Express Mail. This allows the other party the opportunity to object to the request for the 401k account documents. In an amicable divorce, an objection probably won't happen, but the wait period is required by California law.

9. Serve the custodian of records, in person, a photocopy of the subpoena within three to five days after the appropriate number of days has passed. Keep the original set for your records.

   If the subpoena is not served on the witness (custodian of records) within the required time period, the subpoena becomes invalid and the process must be started over.

   Once the subpoena has been served properly, you should receive a call from the company informing you of the fees involved for copying and delivering the requested documents to determine the value of the 401k account. Pay the fees, and the company should mail your information by or before the evidence date listed on your subpoena.

Tips & Warnings

• If you are serving a bank the subpoena, you may be able to serve a local bank branch. Contact the bank to verify.

• Seek the advice of a family law lawyer if your circumstances go beyond the scope of this article.

References

• Sacramento Law Library
• Justia U.S. Laws
• California Courts -- Self Help Center