401-K

[GALady51]

My ex and I have been separated for seven years and will be divorced (hopefully!) at the end of this month.

I moved to GA in June 2004.  My ex lives in NYC with our son, 15.  I filed here in 2/05 and he filed in NYC recently.  My atty and I (he's in NYC) have made the motion to dismiss the NY action and we will have a limited divorce in GA as custody, support and any other issues will have to be decided as the child resides in NYC.

My question: During our separation, the ex cashed in his 401-K (and said he paid the penalties for doing so).  Is he liable for my half of this when we setttle up? And how do I go about finding out info to ascertain it's worth at the time of separation? Lastly, if he does have to "pay out", is this enforceable? I do know I can roll it over if so.

Please advise.

[socrateaser]

>My question: During our separation, the ex cashed in his 401-K
>(and said he paid the penalties for doing so).  Is he liable
>for my half of this when we setttle up?

NY is a separate property jurisdiction, and spouses are entitled to manage their separate property during the marriage. This includes a retirement account. On dissolution, the court has authority to divide the property of the marital estate in an "equitable" (fair) manner, depending upon all of the facts and circumstances of the case.

I don't know your respective financial circumstances, income, earning capacity, what separate property you may have each brought into the marriage, etc., so it is impossible for me to analyze whether or not you are entitled to one half of the retirement benefits. However, the notion that you are "entitled" to one half of everything is not applicable to NY law -- that legal principle is reserved for "community property" States, i.e., TX, LA, NM, AZ, CA, NV, ID WA, and WI.

>And how do I go about finding out info to ascertain it's worth at the time of separation?

You have the right to subpoena the financial records for the 401K from the employer.

>Lastly, if he does have to "pay out", is this enforceable?

Federal law permits married spouses to obtain proceeds from a federally qualified retirement plan, via a "Qualified Domestic Relations Order." Such a distribution will be tax free.