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401k of community property

Dallas, TX |

Am i entitle to my husband 401k as a community property, if so, how can i access that if i want to hire a lawyer? I know what bank his 401k is but am i entitle to get some sort of info just to paid my lawyer for divorce and child custody

Attorney Answers 3


401K assets accrued during the marriage are typically community property in Texas and subject to division at the time of divorce. You may not be able to access those funds prior to divorce, however, as they are in your husband's account and subject to his management and control. Further, any access to those funds could result in penalties and other tax-related issues.

You should consult with a good family lawyer in your area. He or she can talk with you about how to access funds for your divorce, including, possibly, having the Court order your husband, at the beginning of the case, to pay some or all of your attorney fees.

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You are entitled a portion (typically half) of the 401k generated during the marriage. You can access those monies with a heavy penalty prior retirement with a qualified domestic relationship order or by having a court order your spouse to pay monies out of it to you or your attorney. Typically the Court will only order attorney's fees be paid out of it and you get a portion upon the divorce being finalized.

An attorney can help you do this. You need to call your spouse's place of business and try to get the retirement info. If that does not work, and you can't call the manager of the 401k, an attorney can subpoena the records or request them through formal discovery.

This answer is intended for informational and educational purposes only and should not be considered legal advice nor forming the attorney client relationship. This attorney is licensed in Texas.

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If the account is truly a qualified 401(k) that is held in your spouse's name, you will not be able to access it without an order from the court that has also been approved by the plan's administrator -- even though under Texas law the funds may be considered to be community property. The reason is because 401(k) plans are governed by specific federal laws that preempt state laws.

However, as an alternate payee (spouse of employee), under those same federal provisions, once you have a qualified order, you can elect to receive your community portion of the account immediately upon divorce *without* paying the additional 10% early withdrawal penalty. Of course, you would still have to pay ordinary income tax on the disbursement.

I hope this additional information is helpful to you.

The foregoing is offered for informational and educational purposes only. No attorney client relationship has been established and you should consult with an attorney to obtain specific legal advice.

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