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Will a QDRO pay for the money I have to take out of the 401K for the settlement and the taxes, penalties and interest.

Wichita, KS |

I have to pay the house off and sign over to the wife, I also have to pay a cash settlement. This all needs to come out of 401K since we do not have tangable cash or lots of money in the banks.

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Attorney answers 2


Your question isn't entirely clear. A 401(k) may be part of the marital estate, which means that whether a divorce is reached by settlement or by court order, it should be included in the assets that are divided (or at least addressed). If it is your 401(k) and it stays with you, you can do as you please with it; no QDRO is required. A QDRO is only necessary if the 401(k) is divided and a portion goes to the non-participant spouse. The QDRO would not specify how or when that spouse gets to use his or her portion. However, a settlement agreement could address the possibility of using a 401(k) to pay off the house before it is transferred to the other spouse. You would have to keep in mind the taxes and other penalties for using those funds. But the disposition of the 401(k) should be according to the divorce decree, in any case. Best of luck.


Your question is not clear. I will suggest you talk to your lawyer who represented you in the divorce to help guide you with what you need to do. Good luck.

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