08 Mar Can my ex go after my retirement funds?
Q. I divorced 10 years ago. All was settled. My ex-wife opted not to ask for any retirement funds. Can she go after this 10 years later? Or even spousal support? The common child is 17 and he lived with his father for most of this time frame.
A. Nothing stops your ex-wife from filing an application with the court to revisit certain terms of your divorce judgment, but it doesn’t mean she’ll have any success.
It really comes down to how your divorce judgment and settlement agreement were drafted at the time of your divorce, and specifically, if they provided for your ex-wife’s explicit, voluntary and intentional waiver of her rights to your retirement accounts and receiving alimony, said Jeralyn Lawrence, a family law attorney with Lawrence Law in Watchung.
She said a waiver is the voluntary relinquishment or surrender of some known right or privilege.
“If your ex-wife explicitly waived her share of your retirement assets, and waived alimony, then she will have a difficult time convincing a court that she is entitled to either 10 years later,” Lawrence said.
She said New Jersey has a strong public policy favoring the enforcement of fair agreements that have been voluntarily and knowingly entered into between two parties.
Provided those assets were fully disclosed in your agreement, were made known to your ex-wife, and she intentionally and voluntarily waived her right to them, it is not likely she will succeed on an application to re-open these issues, Lawrence said.
“Similarly, if your ex-wife had full knowledge of your income at the time of divorce, and fully comprehended her entitlement to alimony at that time, if any, but agreed to waive that right nonetheless, it will be difficult to overcome the terms of the agreement regarding alimony absent a significant change in circumstances,” Lawrence said.
We’re not sure exactly what you’re asking regarding your 17-year-old son, but it’s worth noting that custody and parenting time is always subject to review pursuant to the best interest of the child.
“However, at the age of 17, a court would certainly consider your son’s personal preference in determining the custody and parenting time arrangements that would serve his best interest,” Lawrence said. “For children who have reached, or neared, the age of majority such as your son, they are no longer under the purview of the court, and their preference as to living arrangements is given great deference.”
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