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Can a spouse still go after her husband's 401K if it was cashed out while in the process of finalizing the divorce?

Vancouver, WA |

The husband hired an attorney and had all the divorce paperworks completed. It was uncontested so they are still in the process of negotiating before finally filing it in court. In the process the husband filed an application to cash out one of his 401K plans. The wife had stated on the decree that she will claim 50% of all his 401K plans. If the husband gets his 401K money, can the wife still get it back once the divorce has been finalized? Can the wife call the plan administrator to inform them about it or at least put it on record that they are in the process of divorcing? Can the wife do something to stop her husband from getting the money?

Attorney Answers 2

Posted

A retirement account which accrued during the marriage is presumed to be community property and divisible. If the husband cashed out a 401(k) plan acquired during the marriage, the proceeds would probably retain its community property nature, and thus still be divisible. If the husband got court authority to cash out the plan and keep the money, it would probably be allowed to stand. The actual answers may depend on facts that you have not identified. You should consult with an experienced attorney.

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Posted

The first thing that the wife has to do is to contact an experienced family law attorney. It appears that her relying on her husband to follow through on an agreement is clearly not working.

Since they are still negotiating and the dissolution is not final, she may seek a temporary restraining order to maintain the status quo. The first thing to do for the wife and counsel is to find out what the current status are of each 401(k) at present. Then, once you know what's happended to them, you can take immediate action to protect the balance of the 401(k)s and any distributions made to the husband. Finally, when they have been protected, you can settle the case and take action to distribute.

If the husband has taken funds from the retirement funds, you are not going to settle the case and then try to chase funds. Protect the assets, assemble info and then settle.

The material provided herein is not legal advice and there is no attorney client relationship existing herein.

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