Louisiana -- prenup, 401k and federal law

[emgm]

What is the name of your state (only U.S. law)? Louisiana

Hi there,
I signed a prenup on the way to the airport a day before my ex and I married in Vegas. I was pregnant, Hurricane Katrina had just hit and my attorney had left the area so I did not have a legal professional look at it though I signed that I did. My husband did not disclose his assets and neither did I. However, it was signed by a notary and 2 witnesses so its legit. My attorney said that I would have a very difficult time getting it overturned and it would cost thousands of dollars I don't have. I have brought to her attention all the stuff I've read online about fair prenups, what can invalidate them, etc but apparently reversing a prenup in Louisiana is next to impossible. I have resigned myself to the stupid decision I made and am trying to get on with life. My ex is a multi- millionaire and the prenup was worded so that I get nothing from the marriage. We were married 11 years and have a 10 yr old son.

Recently a friend told me about a federal law IRC 417a2 that supposedly overrides state law when it comes to 401ks and prenups.

http//www.nolo.com/legal-encyclopedia/if-you-don-t-want-leave- retirement-accounts-your-spouse.html

"A special rule applies to 401k plans and other qualified plans governed by federal law Your spouse is entitled to inherit all the money in the account unless he or she signs a written waiver, consenting to your choice of another beneficiary. Its not enough just to name someone else on the beneficiary form that your employer gives you. If your spouse agrees to sign the waiver, which should be provided by the firm that administers the 401k plan, a plan representative or a notary public must act as a witness. A prenuptial agreement cant take the place of a waiver the law says the spouse not soon-to-be-spouse must sign. A spouse who does sign a waiver can withdraw that consent if the other spouse later names a different beneficiary, unless the signing spouse expressly gave up that right. IRC 417a2"


I sent this info to my attorney but have yet to hear back. I hope she doesn't think Im questioning her knowledge of the law.I just want to leave no stone unturned. Im 53 and have been a stay-at-home mom for 20 years. I helped raise my exs kids, as well as my own and our son together. Im finding it extremely difficult to find a job, especially one with a living wage. Thank you so much for any advice you can offer.

 

[cbg]

The signature, stamp and seal of a notary indicates that the notary has verified the identity of the signatories. It does not make an otherwise unenforceable agreement enforceable.

I have no idea if what you signed is enforceable or not but if it isn't, the fact that a notary signed it does not make it so. It's either enforceable or it's not; a notary's signature does not affect it either way.

 

[CTU]

What is the name of your state (only U.S. law)? Louisiana

Hi there,
I signed a prenup on the way to the airport a day before my ex and I married in Vegas. I was pregnant, Hurricane Katrina had just hit and my attorney had left the area so I did not have a legal professional look at it though I signed that I did. My husband did not disclose his assets and neither did I. However, it was signed by a notary and 2 witnesses so its legit. My attorney said that I would have a very difficult time getting it overturned and it would cost thousands of dollars I don't have. I have brought to her attention all the stuff I've read online about fair prenups, what can invalidate them, etc but apparently reversing a prenup in Louisiana is next to impossible. I have resigned myself to the stupid decision I made and am trying to get on with life. My ex is a multi- millionaire and the prenup was worded so that I get nothing from the marriage. We were married 11 years and have a 10 yr old son.

Recently a friend told me about a federal law IRC 417a2 that supposedly overrides state law when it comes to 401ks and prenups.

http//www.nolo.com/legal-encyclopedia/if-you-don-t-want-leave- retirement-accounts-your-spouse.html

"A special rule applies to 401k plans and other qualified plans governed by federal law Your spouse is entitled to inherit all the money in the account unless he or she signs a written waiver, consenting to your choice of another beneficiary. Its not enough just to name someone else on the beneficiary form that your employer gives you. If your spouse agrees to sign the waiver, which should be provided by the firm that administers the 401k plan, a plan representative or a notary public must act as a witness. A prenuptial agreement cant take the place of a waiver the law says the spouse not soon-to-be-spouse must sign. A spouse who does sign a waiver can withdraw that consent if the other spouse later names a different beneficiary, unless the signing spouse expressly gave up that right. IRC 417a2"


I sent this info to my attorney but have yet to hear back. I hope she doesn't think Im questioning her knowledge of the law.I just want to leave no stone unturned. Im 53 and have been a stay-at-home mom for 20 years. I helped raise my exs kids, as well as my own and our son together. Im finding it extremely difficult to find a job, especially one with a living wage. Thank you so much for any advice you can offer.

You need to get a second opinion from a different attorney - fast.

 

[cbg]

^^^Agreed (10 character limit)

 

[emgm]

Thanks for your replies. Yes, re: the notary, I just meant that is one of the things that you must have to legitimize a prenup in LA. I got a second opinion and was given the same info -- that the contract looked legally binding and would be difficult to overturn. I supposedly have one of the best attorneys in my area. I think she knows I don't have the money to pursue this and she's concerned I would rack up thousands in legal bills -- believe me, my ex would take it to the supreme court if he had to -- and not be able to pay her if I lose.

 

[adjusterjack]

"A special rule applies to 401k plans and other qualified plans governed by federal law Your spouse is entitled to inherit all the money in the account unless he or she signs a written waiver, consenting to your choice of another beneficiary. Its not enough just to name someone else on the beneficiary form that your employer gives you. If your spouse agrees to sign the waiver, which should be provided by the firm that administers the 401k plan, a plan representative or a notary public must act as a witness. A prenuptial agreement cant take the place of a waiver the law says the spouse not soon-to-be-spouse must sign. A spouse who does sign a waiver can withdraw that consent if the other spouse later names a different beneficiary, unless the signing spouse expressly gave up that right. IRC 417a2"

Unfortunately, that section of the IRC (and the rest of the section) basically says he can't change the beneficiary or borrow against it over a certain limit or cash it out (if you were the beneficiary) without your consent.

However, you don't get any money out of it unit he's dead.

See:

https://www.law.cornell.edu/uscode/text/26/417

Considering the circumstances under which you signed the pre-nup it's possible that he never added you as beneficiary in the first place. If not, he had no obligation to do so and that provision doesn't do you any good.

By the way, your pre-nup shouldn't eliminate you right to child support if you have custody of your 10 year old.

 

[emgm]

Unfortunately, that section of the IRC (and the rest of the section) basically says he can't change the beneficiary or borrow against it over a certain limit or cash it out (if you were the beneficiary) without your consent.

However, you don't get any money out of it unit he's dead.

See:

https://www.law.cornell.edu/uscode/text/26/417

Considering the circumstances under which you signed the pre-nup it's possible that he never added you as beneficiary in the first place. If not, he had no obligation to do so and that provision doesn't do you any good.

By the way, your pre-nup shouldn't eliminate you right to child support if you have custody of your 10 year old.

Yes, I have child support.
That sucks. You're right, he probably never did add me as a beneficiary, considering I was completely left out of his will as well.