My husband drew out his 401 k am I entitled to any of it we have been married for 19 yrs not living together for 8 yrs.
3 attorney answers
You stated that he is still your husband. Under Idaho community property law, there is a general presumption that each spouse has authority over all community assets. However, you also stated that you have not lived together for 8 years and he is now in Colorado.
Many questions come to mind, such as "why are you two still married" and "did you have any agreements regarding community assets?" A family law lawyer should be able to ask the appropriate questions of you and determine whether or not you have a reasonable chance of recovering part of the money. If you do, the only way that I see that happening is through divorce.
A QDRO generally applies as the result of a divorce proceeding. Because you are still married and he already cashed in the 401k, I do not see where a QDRO would enter the picture for the already-cashed out 401k.
I recommend that you consult an Idaho family law lawyer right away.
You need a Qualified Domestic Relations Order (QDRO) to split retirement money. If he already took it all out you may be too late. Family law attorneys deal with QDROs, but honestly you should get someone who understands ERISA and knows how to draft QDROs to draft it.
You must speak with a licensed family law attorney in your State. In Florida, there is a definite potential for you receiving your half based on the principles of equitable distribution. However, there may also be arguments your Husband could make regarding active and passive appreciation and unequitable distribution. Hire an attorney. Good luck.
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