FL-100 Community Property

Hi,

I’ve been married for a few years and now filing for divorce. We don’t have any houses/cars together, but we do have our own 401(k) accounts. We agreed to keep it separate. What is the proper language to write it in field 10 of FL-100? Can I say something like “Petitioner’s 401(k) account award to petitioner”? Should I use the word “away” or “confirm”?

Respondent got her 401(k) after the date of separation, so I believe this would automatically make it her separate property. Is that correct?

Thank you.

Hi Dennis,

The sections of the Petition and Response asking about community and separate property

Hi Cristin,

But what is the proper way to list 401(k)? Should I list it in community property and say “Petitioner’s 401(k) account award to petitioner”?

If it is community property, it needs to be listed as such. Same with separate property. The facts dictate where the 401(k) accounts are listed.

If 401(k) was started during marriage, it is considered community property, if I understand correctly? But my spouse and I agreed that we keep our 401(k)s and don’t divide it. So I am trying to figure out how to properly say that in the FL-100 petition. I do want to list it, but I want to specify that I am keeping all of it. And she will be keeping hers. We are not interested in dividing 401(k)s

It looks like my original answer was cut off. Community property is anything acquired during marriage. Separate property is anything acquired prior to marriage, or after separation. The petition and response questions related to separate property and community property are factual recitations of whether something is community or separate. You are certainly free to state that the two of you have an agreement related to a piece of community or separate property, but that’s not really the intent of those sections. I suppose if I were to do so, I might state something to the effect of “Petitioner requests that the community interest in his 401(k) be confirmed to him based on the agreement of the parties.” To clarify, stating something is community property is not the same as saying it has to be divided. All you are saying is that it’s community property.

Cristin, thank you for such detailed answer. We do have an agreement regarding community property and I would like to just say “will be amended at a later date” in Section 10. Do you think it would be acceptable by the court for me to write that? And if I do, do I need to check (b) still?

Thank you

You won’t want to say “will be amended at a later date,” as I assume that you won’t want to actually amend your petition and redo your work. You can put something to the effect of “to be determined at a later date by agreement.” You absolutely do want to check (b), as opposed to (a), since community property does exist.

Thank you, Cristin. You are very helpful.

Hi Cristin,

If the petitioner had a checking Account before marriage, there were no joint accounts established and no commingling of funds, is the account considered separate or community property? Can this be listed as separate property on FL 100?

Anything acquired before marriage, including a checking account, is the separate property of the acquiring party. Separate and community property have very concrete definitions. Separate property is anything acquired before marriage and after separation, or anything acquired as a gift or inheritance, regardless of when it was received. Community property is anything acquired during marriage that is not a gift or inheritance.