The fact that you each have a 401k is not as relevant as the amount of the increase in those two accounts during the time you were married. While you two can agree on anything you want, if the court gets involved, it is likely to equalize the two 401ks to the extent of the appreciation during the marriage. This is accomplished by transferring some other money or promise of money or by having the Court enter a Qualified Domestic Relations Order (QDRO) in which one of you gets a right to part of the other party's 401k to equalize things. You might want to talk to a lawyer about this. I know that I have had clients where this was basically the only thing involved but there was a significant difference.
Answered on Aug 14th, 2011 at 7:07 PM