Can I sue Ex's former employer for releasing 401K funds to him?

[AGT1965]

Arkansas - After divorcing but before settling Marital Assets, my husband's former employer released 100% of his 401K to him. This was back in 2003. Our marital assets were settled in 2004 and the judge awarded me 1/2 of that 401k but since he had spent it, I now have a judgement against him for $38,000.

Since you can't get blood from a turnip, I was wondering if I could sue his former employer for releasing it to him in the first place without my consent. We were married for 14 years.

It's my understanding it's a federal law that prohibits someone from cashing out a 401K without the spouses consent?

 

[Zigner]

Answer: Yes

More detailed answer: You can sue anybody for anything.

Even more detailed answer: The employer is not a party to your divorce - you need to take action against your ex.

 

[CMLANDLORD]

Answer: Yes

More detailed answer: You can sue anybody for anything.

Even more detailed answer: The employer is not a party to your divorce - you need to take action against your ex.

Exactly...the employer may not have known you were in divorce proceedings. You need to get after your Ex.

 

[mlane58]

There would have been a QRDO in place and the employer would have to have known about it to be liable.

 

[AGT1965]

My brother is a Human Resources Manager and told me regardless if you are married or divorced, that there is a federal law that prevents one spouse from taking cash out a 401K without the other spouses knowledge. I remember one time we took out a loan from his 401K and I had to had to sign and have a notorized document with my consent.

We were married during the time he was employed there and I was listed as a beneficiary for all of his paperwork.

I do have a judgement against my Ex for the 1/2 he took illegally but I would think the employer or plan administrator should be held accountable as well.

I guess I need to dish out some $$ and find out for sure.

 

[Zigner]

My brother is a Human Resources Manager and told me regardless if you are married or divorced, that there is a federal law that prevents one spouse from taking cash out a 401K without the other spouses knowledge. I remember one time we took out a loan from his 401K and I had to had to sign and have a notorized document with my consent.

We were married during the time he was employed there and I was listed as a beneficiary for all of his paperwork.

I do have a judgement against my Ex for the 1/2 he took illegally but I would think the employer or plan administrator should be held accountable as well.

I guess I need to dish out some $$ and find out for sure.

For all you know, the employer/plan admin. HAS "your" signature approving the transaction.

 

[mlane58]

My brother is a Human Resources Manager and told me regardless if you are married or divorced, that there is a federal law that prevents one spouse from taking cash out a 401K without the other spouses knowledge. I remember one time we took out a loan from his 401K and I had to had to sign and have a notorized document with my consent.

We were married during the time he was employed there and I was listed as a beneficiary for all of his paperwork.

I do have a judgement against my Ex for the 1/2 he took illegally but I would think the employer or plan administrator should be held accountable as well.

I guess I need to dish out some $$ and find out for sure.

Your brother is incorrect. Unless you as the spouse are somehow listed on the plan documents, then he can take a loan or cash out when he is no longer employed. If he is still employed by this employer, than I find it very unlikely that the employer released any portion of the 401k as that would be a violation of ERISA. If in fact the employer did violate ERISA, you can file complaint with the US DOL.

 

[Beth3]

I do have a judgement against my Ex for the 1/2 he took illegally but I would think the employer or plan administrator should be held accountable as well. But you don't know under what circumstances the withdrawal took place. Did your ex-husband forge your signature?

My brother is a Human Resources Manager and told me regardless if you are married or divorced, that there is a federal law that prevents one spouse from taking cash out a 401K without the other spouses knowledge. That is true of married participants but once the divorce was final, your ex was single. Perhaps he "snuck in" and took the distribution after the divorce and never telling the employer there was a QDRO.

Before deciding the employer is somehow liable, you need to see what you can do to get a copy of the Distribution Request Form that your ex completed in order to withdraw the funds.

 

[nextwife]

Has he received his half of YOUR 401k yei? Maybe you can get the court to approve holding it back from him until he comes up with your half of his?