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Can I ask for part of his 401k and alimony if I have a baby that was created during the divorce process and is not his.

San Bernardino, CA |

I was married 9 years to my soon to be ex husband 6 years in to the marriage he had an affair with a woman at his work who he still is in a relationship with 3 years later. One day he said I am no longer giving you child support which was 500 dollars I was a stay at home mom. He makes over 60,000 a year. During the separation and divorce after 8 months I became pregnant not by him and 9 months later I now have a baby and I wanted to know if I can ask for anything since I had a baby by someone else. Do I have any ground to still ask for anything if so what? I just want what is fair and if I am entitled to anything. He has 401 k would I be able to ask for alimony?

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Attorney answers 3


If you were married, and money went into his 401(k) during the marriage, it is (probably) community property and you're entitled to a share of it, along with your share of any other community property.. If you and he had children during the marriage, he has an obligation to contribute to the support of his children.

Your new child has NO effect on EITHER of these facts.

If you were married, and a stay-at-home Mom, and he makes more than you, you're PROBABLY entitled to some spousal support (what used to be called alimony) AND you're probably entitled to ask the court to order him to pay part of your attorney fees.

You should speak to an experienced family law attorney about protecting your, and your children's rights.


I agree with the answer and analysis by Mr. Richard Gould-Saltman. I would add that you likely have child support rights against the person that is the father of your more recent child. Child support is based upon paternity - not marriage.
BTW there is a presumption that a child conceived during a marriage is the child of the married people. Given your post that you became 'pregnant not by him' if you were to attempt to rely on the presumption (which you know to be false) pursuit of child support from your ex-spouse will likely be an actionable fraud and if court papers 'filed under penalty of perjury' are submitted that are fraudulent, then such conduct is actionable against you as a crime.
Again, speaking with a family law attorney may not get clients the money they seek but results in the avoidance of seriously adverse consequences.
More information helpful for your situation is available here:
Best of luck to you and your new baby!

As stated above, this is an incomplete answer but an attempt to provide a cursory overview of a subject that attorneys 'practice' and improve upon during the entirety of their legal careers. This response is not meant as legal advice or as a legal opinion. Such advice would be impossible or impractical without additional information and more facts giving rise to the question. A consultation with an attorney is necessary.


My colleagues have provided you with solid information. IF you did not have the assistance of counsel during the divorce process, I suggest that you seek that assistance now.

** LEGAL DISCLAIMER ** My response above is not legal advice and it does not establish an attoreny-client relationship. When responding to questions posted on Avvo, I provide a general purpose response based on California law as I am licensed in California. In reviewing my response, you are specifically advised that your use of, or reliance upon any response I provide is not advisable. I do not have all relevant background details or facts related to your issue / matter, thus I am not in a position to give you legal advice. Further, your review, use of, or reliance upon my response does not establish an attorney-client relationship between us nor does it qualify as a legal consultation for any purpose. For specific advice regarding your particular circumstances, you should consult and retain local counsel. Law Offices of Eric J. Gold Telephone: 818-279-2737 Email: service@egoldlaw.con

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