401K and divorce

[idunno]

What is the name of your state? California

My husband's company is going out of business, so something will have to be done with the 401K account. I will be divorcing my husband, although I have not filed for divorce yet. I live in a community property state, so I am entitled to half of the 401K. Is it possible to roll half of it over in an IRA in my name, and half of it in an IRA or some other type of account in his name without penalties? He says that because he was the wage earner, it has to stay in his name, and he plans on putting it in some type of account that he would have access to the funds and I would not. He has given me a form to sign saying that I OK the 401K funds being sent to an account in his name, should I sign?

 

[Ohiogal]

What is the name of your state? California

My husband's company is going out of business, so something will have to be done with the 401K account. I will be divorcing my husband, although I have not filed for divorce yet. I live in a community property state, so I am entitled to half of the 401K. Is it possible to roll half of it over in an IRA in my name, and half of it in an IRA or some other type of account in his name without penalties? He says that because he was the wage earner, it has to stay in his name, and he plans on putting it in some type of account that he would have access to the funds and I would not. He has given me a form to sign saying that I OK the 401K funds being sent to an account in his name, should I sign?

YOu would need to be divorced and then you would need to have a QDRO so that your portion awarded during the divorce could be put in your name before you receive a portion of it.

 

[idunno]

It will take some time to file for divorce; I have not even found an attorney yet, and I think there is a time restraint on how quickly the 401K needs to be rolled over into an IRA to avoid a penalty.

Something I meant to ask earlier- Is there a way for me to find out how much money is in the 401K? He always handled all the finances. I asked him how much was in it, and he told me about 50 thousand. After 20 years in a very high paying job this seems very low to me.

 

[nextwife]

What is the name of your state? California

My husband's company is going out of business, so something will have to be done with the 401K account. I will be divorcing my husband, although I have not filed for divorce yet. I live in a community property state, so I am entitled to half of the 401K.

That is not necessarilly true. Living in a community property state only entitles you to the half of any 401K funds that accrued DURING the marriage. 401K funds that were premarital, if any, are NOT community property.

 

[idunno]

That is not necessarilly true. Living in a community property state only entitles you to the half of any 401K funds that accrued DURING the marriage. 401K funds that were premarital, if any, are NOT community property.

We have been married 30 years.

 

[cbg]

If the 401k is closed or terminated or rolled over before you are divorced and before you have a QDRO, then you are not entitled to half. Simple as that.

 

[idunno]

If the 401k is closed or terminated or rolled over before you are divorced and before you have a QDRO, then you are not entitled to half. Simple as that.

So should I try to hold off on signing the document allowing the rollover? Can't it be rolled over into an IRA in both our names, or split into two IRA's if he is agreeable? If it's POSSIBLE, the only reason he would NOT do that is if he can convince me to sign it ALL over to him. How quickly can a QDRO be obtained? What should my course of action be under these circumstances to protect myself?

 

[cbg]

Talk to a lawyer.

 

[idunno]

Talk to a lawyer.

Thank you for responding to my post. I guess I was hoping for more guidance and advice about what to do until I found a lawyer, and that lawyer had time to do something on my behalf. I did learn from cbg's posts that I would lose my share of the 401K if I sign the document, but no one has answered my other questions. I just know that if I tell him I won't sign the document, my husband will be furious with me. It's understandable that he would want to get the money into an account where he would avoid having to pay any penalties, and I don't want to be the cause of him losing money unnecessarily.

Could someone please answer my other questions? Maybe if I could suggest to my husband another alternative, like splitting it between two IRAs he would be agreeable. Also, how to find out how much is in the account would be helpful. I fear he has already hidden funds and assets from me.

I plan on getting a lawyer ASAP, but I could use advice about what to do between now and then.

 

[cbg]

What I said was that you are not automatically entitled to half, in your name, in a separate account, without a QDRO. And you're not going to get a QDRO as long as you haven't even filed for divorce yet.

You don't have to have it in your name today. If the company is closing and you don't sign the form, what's going to happen is that the company will send a check, made out to your husband AND NOT TO YOU, for the amount in the account minus taxes and a 10% or 20%, I forget which, penalty. So your insistance on getting the money in your name and your account, right now, is going to result in both of you losing a fair portion of it.

Whereas if you sign the rollover form without demanding that it be put in your name immediately, it will still be an asset subject to the community property law in your state when you do get divorced.

So you can demand it now and probably cause a fair portion of the account to be lost, or you can hold your horses and have the full amount divided later. Which makes more sense to you?