Must a husband get permission from his wife to withdrawal his 401K? 5 Answers as of June 21, 2011

Must a husband notify his wife, and get her written permission, of which she owns 50% community interest in his employer 401(k), if he withdraws it all? If he does, and uses it for a down payment on a new car, does she later have a 50% claim to the community asset, (incorrectly converted from a retirement asset to personal property) when she files a petition for divorce? Can she sue him (or arbitrate), outside divorce, to compel him to buy out her share to keep the car?

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Warner Center Law Offices of Donald F. Conviser
Warner Center Law Offices of Donald F. Conviser | Donald F. Conviser
In a divorce, the wife can seek monetary penalties against the husband and reimbursement of her community share of the 401K for violation of his fiduciary duty as a result of the husband's conduct addressed in your question. The wife should seek her remedies from the Family Law Court, not in a separate lawsuit or arbitration. The wife would best retain an experienced Family Law Attorney to represent her in the divorce.
Answer Applies to: California
Replied: 6/21/2011
Michael Apicella
Michael Apicella | Apicella Law and Mediation
There is a remedy to this problem. However, it would take more than a few sentences to describe how best to proceed in relation to the breach of fiduciary duty issues before divorce, as well as the remedies one can pursue as part of a divorce. It would be best to contact a local (and experienced) family law lawyer. If in Marin or Sonoma County, feel free to contact my office. Good luck!
Answer Applies to: California
Replied: 6/14/2011
Law Office of L. Paul Zahn
Law Office of L. Paul Zahn | Paul Zahn
Community property is community property in whatever form it is in. Whether it is cash in a retirement account or used to purchase a car, the asset remains community property. If it is a joint account, then both parties are required to sign for withdrawals. If you are in my area and are looking for an attorney, please contact me for a free consultation.
Answer Applies to: California
Replied: 6/14/2011
Law Office of Patricia Van Haren
Law Office of Patricia Van Haren | Patricia Van Haren
If the actions are done during the marriage, the wife would own 50% of the community asset purchased from the 401K funds. Each party may use community income and assets during the marriage as long as they are for the benefit of the community. If it can be shown that he withdrew the funds in order to conceal an asset just prior to filing for a dissolution, then she may seek recovery of her community interest. Additionally, if the husband withdraws the money after filing for the dissolution, she can recover her community share of the asset.
Answer Applies to: California
Replied: 6/14/2011
Law Office of Jackie Robert Geller
Law Office of Jackie Robert Geller | Jackie Robert Geller
A married California resident cannot withdraw funds from retirement account without spouse signing off on the request. If the employer allows such a withdrawal, then it can be liable to the spouse.
Answer Applies to: California
Replied: 6/14/2011
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