What to do about a 401 K division after divorce?

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What to do about a 401 K division after divorce?

I have a divorce decree signed 8 months ago that split my 401K plan with my ex. As of today, she has not taken any monies, has been ignoring my inquiries and just refers me to her attorney. I am the sole provider for her and our children and I am undergoing financial hardship and need to withdraw “early withdrawing” of my 401K plan. How can I force her to take her half and let me move on with my life?

Asked on August 21, 2012 under Family Law, California


Cameron Norris, Esq. / Law Office of Gary W. Norris

Answered 11 years ago | Contributor

It is really impossible to answer this question without reading the dicorce judgment and understanding a lot of details. Also, the issue of 401ks and divorce is really complicated to the point that not all family lawyers handle these matters.

You need to read the judgment. What does it say?  Does it just say: "the 401k to be divided equally?"  Does it require you to do a QDRO now or later?  Did you have an attorney in this matter? 

Most divorcing couples choose to do a QDRO, a qualified domestic relations order which joins the plan administrator of 401k into the lawsuit, forcing the plan administrator to split the plan.  There are several ways to do QDRO's but the most common is the Type A ("cash out"), the Type B (each get benefits when they start) and Type C (already retired at divorce and split benefits).

There is more than one way to do a QDRO and you don't HAVE to do one.  You could simply buy her out---giving her money or some other compensation to leave your 401k alone. 

You really need to sit down with a local family law attorney, bring your paperwork, and review what is next.

Best of luck.

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