01 Apr My ex took a 401(k) plan worth $170K. Do I have recourse?
Q. My ex and I had $170,000 in a 401(k). He took it all. Do I have recourse?
A. You may have recourse.
However, what options may be available to you will depend on the specific details of your divorce and how the account was addressed.
You should have a matrimonial law attorney review your agreement and the details of your case, but there’s what you need to know.
Generally, all assets acquired during a marriage will be subject to equitable distribution but some assets are immune from equitable distribution, Kenneth White, a certified matrimonial attorney with Shane and White in Edison.
“Retirement benefits amassed in a spouse’s 401(k) during the marriage are routinely subject to equitable distribution and will most often be divided so that each spouse receives 50% of the same, plus or minus any gains or losses attributed to such funds from the date the complaint for divorce was filed until the date the funds are actually distributed,” White said.
The language should have gone further into directing specifically how distributing the benefits would occur, such as, “The parties shall retain company `X’ for the purpose of calculating the wife’s interest” and drafting any necessary Qualified Domestic Relations Order to ensure that the wife receives her share in a timely manner, White said.
If your ex failed to cooperate with 401(k) distributions per your agreement, you have the right to file a Notice of Motion with the court seeking enforcement of the terms of the agreement, White said.
“Within such a Motion you will seek all relief you are potentially entitled to,” White said. “Such relief will include a request that your ex be held in contempt of court and/or in violation of litigant’s rights for his blatant failure to comply with the terms of your divorce and otherwise denying you access to your share of the retirement benefits.”
Further, you will ask to be made whole.
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This story was originally published on April 1, 2022.
NJMoneyHelp.com presents certain general financial planning principles and advice, but should never be viewed as a substitute for obtaining advice from a personal professional advisor who understands your unique individual circumstances.