How do I get half of my husband's assets? 24 Answers as of June 08, 2011

I was divorced in 2001 and at that time I did not seek to get a portion of my husbands 401k. How do I go about finding out if I am still entitled to any part of his 401k?

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Reeves Law Firm, P.C.
Reeves Law Firm, P.C. | Roy L. Reeves
Look in your decree. Did you waive interest? Were you given an interest? Is the Decree silent? If you were given an interest, there should be a QDRO issued. You need do nothing more, but you should get your interest divided out and moved to your control, the QDRO will explain how to do that. If the decree says he gets his retirement, you are out of luck unless you can prove fraud. Since this is an issue, may I inquire, did you two do a Do-It-Yourself divorce? If so, I am willing to bet you are out of luck. While DIY divorces are common, they are far from complete and in all except the most simple cases, they leave a matter to a one-size-fits-all division that fits no one.
Answer Applies to: Texas
Replied: 6/8/2011
Fredric H. Aaron, Attorney at Law, P.C.
Fredric H. Aaron, Attorney at Law, P.C. | Fredric Harlan Aaron
It is unclear from your question if your divorce was contested or uncontested, and if the division of assets were made by a judicial order or by a settlement agreement. In any event, unless your ex-husband deliberately hid his 401K from you, it is unlikely that you can get a portion of it. The portion of a divorce settlement or decree dealing with equitable distribution is usually final. Based on the passage of time, you will probably be barred from appealing the prior judgment or settlement. The only option is if you could show that there was some element of fraud relating to the 401K. Otherwise, it will be deemed that you waived your interest in your ex-husband's 401K when your divorce was finalized.
Answer Applies to: New York
Replied: 6/7/2011
The Grigsby Firm
The Grigsby Firm | Sherlock Grigsby
If you were divorced in 2001 and did not request any of his assets you may be precluded from making any claims now, unless you can prove that you made reasonable efforts to uncover these assets at the time and were unsuccessful, and or fraud on the part of your husband in hiding these assets.
Answer Applies to: District of Columbia
Replied: 6/3/2011
Howard W. Collins, Attorney at Law
Howard W. Collins, Attorney at Law | Howard W. Collins
If you knew of it at the time of your divorce and your judgment of dissolution does not divide this asset, the law is not in your favor. The general rule is that a property division of assets in the Judgment cannot be modified. Sorry.
Answer Applies to: Oregon
Replied: 6/3/2011
Law Office of Robert L. Fiedler
Law Office of Robert L. Fiedler | Robert L Fiedler
You wouldn't be if it wasn't negotiated for at the time of the divorce unless you can prove that he had it and hid it from you and you had no way of knowing that he had it to begin with.
Answer Applies to: Connecticut
Replied: 6/3/2011
    Beaulier Law Office
    Beaulier Law Office | Maury Beaulier
    The divorce decree controls. If you were not awarded a share of the 401K as part of the divorce decree, it cannot subsequently be awarded.
    Answer Applies to: Minnesota
    Replied: 6/3/2011
    Beresford Booth PLLC
    Beresford Booth PLLC | S. Scott Burkhalter
    Your issue may be more complicated that it seems. 1) You may be entitled to a portion of the 401k as tenants in common, or 2) you may have lost your right to any of the 401k had you known of its existence at the time of divorce and whether it is part of the divorce decree.
    Answer Applies to: Washington
    Replied: 6/3/2011
    Seattle Divorce Services
    Seattle Divorce Services | Michael V. Fancher
    Under Washington law, if it was not awarded to you in the divorce, it would be very difficult to have the decree modified now. Consult with an attorney to see if he or she can find any basis to overturn the decree and reopen the case.
    Answer Applies to: Washington
    Replied: 6/3/2011
    John E. Kirchner, Attorney at Law
    John E. Kirchner, Attorney at Law | John Kirchner
    If you knew about the 401k in 2001 and did nothing, it is probably too late to succeed in getting a share of it. You should consult an attorney who can review the situation with you to see if there might be any viable arguments for reopening the property settlement under Rule 60 of the Colorado Rules of Civil Procedure.
    Answer Applies to: Colorado
    Replied: 6/3/2011
    Law Office of L. Paul Zahn
    Law Office of L. Paul Zahn | Paul Zahn
    If the 401(k) was addressed in the Judgment, you are no longer entitled to any part of the 401(k). If it was not addressed, then it is an after-discovered asset and you might still be able to get a part of it (if you had no prior knowledge of the account). If you are in my area, please contact me for a free consultation.
    Answer Applies to: California
    Replied: 6/3/2011
    Berner Law Group, PLLC
    Berner Law Group, PLLC | Jack Berner
    Was the 401-K mentioned in the divorce decree? If not, and if other assets that were in existence at the time of your divorce were not mentioned in the divorce paperwork, then you may have a shot at getting additional assets. If you reside in Western Washington, feel free to contact my office for a free, no obligation consultation-by phone or in person-about this situation.
    Answer Applies to: Washington
    Replied: 6/3/2011
    The Findling Law Firm, PLC
    The Findling Law Firm, PLC | Daniel M Findling
    In Michigan, divorce settlements are final and not modifiable after entry absent fraud (and in some other remote circumstances). Therefore, if you were not awarded a portion of your ex's 401(k) in the divorce settlement you cannot now claim an interest. Thank you for the opportunity to assist you in this matter. If you require further assistance or would like to schedule a free confidential consultation, I have provided my contact information below. During the consultation we can discuss both the obligations and benefits associated with your case. I look forward to meeting you to discuss your goals.
    Answer Applies to: Michigan
    Replied: 6/3/2011
    Theodore W. Robinson, P.C.
    Theodore W. Robinson, P.C. | Theodore W. Robinson
    Speak to a new experienced matrimonial attorney. Since it has been ten years since your divorce, I don't believe you have any further rights against his 401k plan. You might have had a claim against your attorney for malpractice, however, since ten years have gone by, that's no likely either since the statute on legal malpractice is 2 1/2 years from the time you discover the malpractice or when you should have discovered it. However, you still may have a claim if you speak to a malpractice attorney. Good luck.
    Answer Applies to: New York
    Replied: 6/3/2011
    The Law Office of David J. Reed, LLC
    The Law Office of David J. Reed, LLC | David J. Reed
    Any property acquired during the marriage is marital property - this goes for 401k plans, retirement plans and pensions. Each of the parties are entitled to their equitable share of the property and the court, if the parties can't come to a settlement amount, will divide the property as it sees serves the fairness of the situation. The length of marriage, facts behind employment histories and other factors can effect how the property is divided.
    Answer Applies to: Nebraska
    Replied: 6/3/2011
    Cody and Gonillo, LLP
    Cody and Gonillo, LLP | Christine Gonilla
    If you did not receive a portion at the time of the divorce you cannot obtain it now.
    Answer Applies to: Connecticut
    Replied: 6/3/2011
    Arnold & Wadsworth
    Arnold & Wadsworth | Brian Arnold
    That depends on if you waived the right in the divorce decree. I would go back and look at the divorce decree.
    Answer Applies to: Utah
    Replied: 6/2/2011
    Glenn E. Tanner
    Glenn E. Tanner | Glenn E. Tanner
    Look at the decree. If the decree awards you some of the 401k, you get it. You may need a Qualified Domestic Relations Order (QDRO) to get it into your name. If the decree is silent about the401k, you need to go back to court and ask the court to divide. The court will do what is fair and reasonable in light of the rest of your asset and debt division. An experienced attorney will be essential. Good luck.
    Answer Applies to: Washington
    Replied: 6/2/2011
    Michael Anthony Wing, P.C.
    Michael Anthony Wing, P.C. | Michael Anthony Wing
    I see low odds of it occurring, however, if you were married for an extended period of time, and the court retained jurisdiction in the order of divorce to make modifications for support, then you could petition for a modification. Stay well.
    Answer Applies to: Alabama
    Replied: 6/2/2011
    Warner Center Law Offices of Donald F. Conviser
    Warner Center Law Offices of Donald F. Conviser | Donald F. Conviser
    The best way to seek omitted assets is to retain an experienced Family Law Attorney to represent you. If the 401K was not included in the Judgment, a Notice of Motion to adjudicate an unadjudicated asset can be filed and served, and the Court will make orders to divide the community interest in the 401K. You (or your attorney) will need to hire a QDRO expert to prepare a QDRO [Qualified Domestic Relations Order] to accomplish the division. You had better act quickly - if your husband remarries before the QDRO has been ordered and served, you may lose your remedy because his new wife could become the alternate payee of his 401K.
    Answer Applies to: California
    Replied: 6/2/2011
    Law Office of James Lentz
    Law Office of James Lentz | James Lentz
    In Ohio you would be out of luck unless he concealed the asset. Please consult with local counsel to determine if you have a chance at recovering half of the 401(k).
    Answer Applies to: Ohio
    Replied: 6/2/2011
    Ashman Law Office
    Ashman Law Office | Glen Edward Ashman
    If you were awarded part of the 401K in a divorce, there should have been a QDRO at that time to divide it. If you failed to seek it, you do not get to try and get it later. If you had a lawyer in your divorce, your lawyer would have discussed this and your paperwork would have clearly addressed retirement in some way. If you made the tragic and unfixable mistake of being your own lawyer, you made an expensive mistake that cannot be done over after the fact. The answer is in your divorce papers, and an omission can be the answer.
    Answer Applies to: Georgia
    Replied: 6/2/2011
    Fox Law Firm LLC
    Fox Law Firm LLC | Tina Fox
    You are not. Unfortunately for you, this is why it is called "final" judgment because you cannot go back and add or subtract to it. Sorry.
    Answer Applies to: Illinois
    Replied: 6/2/2011
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