16 Feb I think my ex took from his 401(k) before we split it. What can I do?
Q. I filed for divorce in September 2021 because my husband decided he didn’t want me anymore after 18 years of marriage. I was told I am entitled to half of his retirement account. In the middle of the divorce, I was told his 401(k) had $165,487.97, of which I would receive half. Then he changed jobs and I was told his 401(k) lost money and it was now $150,000.00. My attorney never checked this and I believe my ex may have withdrawn money from the account to pay his own attorney fees. What can I do?
— Getting taken advantage of?
A. In a divorce, you certainly want to make sure you get what’s legally yours.
And you also want to make sure your ex hasn’t undertaken any shenanigans with money that may be coming to you.
In New Jersey, divorcing spouses have the right to request and obtain documents for all accounts maintained by them jointly and individually, said Jeralyn Lawrence, a family law attorney with Lawrence Law in Watchung.
This legal process is called “discovery,” she said.
“Typically, discovery requests are drafted by attorneys and involve written demands for information and documentation spanning three to five years,” she said, noting you have a legal right to statements of bank accounts, retirement accounts, investment accounts, and where relevant, business accounts, among others.
Lawrence said the purpose of discovery in divorce proceedings is to ensure both spouses have complete knowledge of all assets and liabilities so that each can make an informed decision when settling their issues, or in some cases, to allow the parties to prepare for trial, at which time a judge decides the issues.
New Jersey is what is known as an “equitable distribution” state.
This means that a judge has discretion in dividing up marital assets and liabilities in a fair way, which does not always mean that all assets and liabilities will be divided up equally, Lawrence said.
“With that being said, equal distribution of marital assets and liabilities is common because judges in their discretion often find it fair to do so,” she said.
In your case, you have a right to a fair distribution of your husband’s 401(k), she said. You also have the right to see statements of his 401(k), spanning a period of three to five years, she said.
“In this way, you can confirm if your husband has taken any loans against his 401(k) and if so, you can request documentation confirming what those funds were utilized for,” she said. “If your husband took a loan against his 401(k) and did not utilize the funds for marital purposes, you can request that he be solely responsible to repay the loan so that you receive your fair share of the 401(k).”
If he did not take a loan against the 401(k) and the account decreased because of the market, and not because of any action taken by your husband, the sum to be distributed would be the amount accumulated during the marriage and any market growth or losses, she said.
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This story was originally published on Feb. 16, 2023.
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