Can an illegal alien be entitled to half of her 401k and all her assests in a divorce? 13 Answers as of April 04, 2011

My friend is married to a resident but not a "citizen." Can he still be entitled to half of her 401k and all her assets in a divorce?

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Goodman, Dicus, and Teinert, LLP
Goodman, Dicus, and Teinert, LLP | Paul M. Teinert
Marital property rights are not treated any differently based on citizenship. Thus, your friend's spouse would still be entitled to his community property share at the dissolution of the marriage.
Answer Applies to: California
Replied: 4/4/2011
Reeves Law Firm, P.C.
Reeves Law Firm, P.C. | Roy L. Reeves
Citizenship and marital property rights are two different things and they are unrelated. So, the short answer is yes. Your friend's property rights are not affected by his immigration status. I do not know how long they were married, when was the property acquired, is it community separate. These are factors in determining if he gets "half" of her assets. Please look at other postings I have put here regarding division of marital assets/community property etc. and if you have other questions, please feel free to ask.
Answer Applies to: Texas
Replied: 3/25/2011
Cody and Gonillo, LLP
Cody and Gonillo, LLP | Christine Gonilla
I do not see why the court would be precluded from entering an equitable distribution of the assets.
Answer Applies to: Connecticut
Replied: 3/25/2011
Law Office of Martin Blank
Law Office of Martin Blank | Martin E. Blank
Distribution of assets in a divorce are not determined by citizenship.
Answer Applies to: Michigan
Replied: 3/24/2011
Warner Center Law Offices of Donald F. Conviser
Warner Center Law Offices of Donald F. Conviser | Donald F. Conviser
When dividing community property, the divorce court treats illegal aliens the sameway thatit treats citizens and legal residence. The parties are entitled to a 50/50 division of their community property. A QDRO will have to be entered and ordered to divide the 401K, unless the husband stipulates otherwise.
Answer Applies to: California
Replied: 3/24/2011
    Michael Apicella
    Michael Apicella | Apicella Law and Mediation
    Citizenship would not create a waiver of her community property rights.
    Answer Applies to: California
    Replied: 3/24/2011
    Law Office of L. Paul Zahn
    Law Office of L. Paul Zahn | Paul Zahn
    A person's resident status has nothing to do with their property rights in a divorce. They are entitled to 50% of the community interest in every item of property. If you are looking for an attorney to assist you, please contact me for a free consultation.
    Answer Applies to: California
    Replied: 3/24/2011
    Masson & Fatini, LLP
    Masson & Fatini, LLP | Richard E. Masson
    The short answer is, Yes! Even though the person is not a citizen the court still can exercise jurisdiction over them and the community property. Moreover, per the Family Code the Court MUST divide all the assets of the community equally. Thus, there is no reason your friend would not be entitled to her one-half community share in her 401(k) and all the other community assets.
    Answer Applies to: California
    Replied: 3/24/2011
    Fox Law Firm LLC
    Fox Law Firm LLC | Tina Fox
    IL isn't a 50/50 state. Irregardless to someone illegitimate status, a person may not be entitled to 50% of the other spouses 401k. I encourage the spouse to contact our office for a 30 minute consultation to discuss the specific situation of their marriage.
    Answer Applies to: Illinois
    Replied: 3/24/2011
    The Law Office of David J. Reed, LLC
    The Law Office of David J. Reed, LLC | David J. Reed
    Yes. Just because you are illegal doesn't mean that you don't have rights. The divorce courts rarely get involved in citizenship battles, if you were legally married in the US you have all the divorce rights available.
    Answer Applies to: Nebraska
    Replied: 3/24/2011
    Goldberg Jones
    Goldberg Jones | Zephyr Hill
    Yes. Her status likely does not change the laws of community property. If the money was earned after the date of marriage and before the date of separation it is probably have hers.
    Answer Applies to: California
    Replied: 3/24/2011
    Glenn E. Tanner
    Glenn E. Tanner | Glenn E. Tanner
    In my experience the Court is not too concerned about the legal immigrant status of the parties in a divorce when it comes to issues of property and debt division. What each party is entitled to would be more dependent on the nature of the property (separate or community), the finanical future of the parties, the length of marriage, the health of the parties, etc.
    Answer Applies to: Washington
    Replied: 3/24/2011
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