Legal Question in Criminal Law in California

Estranged wife cashed in my 401 k.while I was incarcerated!

I have been living apart from my wife for about 5 years. I was employed as a foreman and she works for the same company doing paperwork. I quit my job because I had to serve 6 months in the county jail and knew my boss wouldn't understand. I had 14 years working for the company and had a 401 k. plan savings. While i was in jail, my wife cashed out my 401 k.Before i went to jail, i had called my company and told them to send the paperwork to my new address where i planned to start living in a new town. The papers never came, so I called my wife and she said yes, she had it sent to her. Is this legal? What can I do? She has given me so much trouble over the years, basically I just stayed away from her, but this is too much! She has taken everything that I own and now she has my 401k of about $20,000. I want a divorce and she says she will not agree. I am 53, all kids grown, everything else was in her name except my 401k. Thanks for any help in this matter as I don't know where to start. Sincerely,--name removed--


Asked on 9/01/04, 8:50 pm

2 Answers from Attorneys
Catherine Lombardo The Law Office of Catherino Lombardo

Re: Estranged wife cashed in my 401 k.while I was incarcerated!

Hello and thanks for your question. First of all, the answer to you question is, probably not, but there are more fact needed to say whether it was legal or not. Secondly, your wife cannot prevent you from divorcing her. California is a no fault state, and you can file for divorce if you want to. It sounds to me like you need a divorce attorney right now, and fast, not a criminal attorney. Did you live with your wife in the southern california area or central?

Law Office of Catherine Lombardo

Catherine Lombardo (909)482-0384

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Answered on 9/02/04, 2:05 pm
Edward Hoffman Law Offices of Edward A. Hoffman

Re: Estranged wife cashed in my 401 k.while I was incarcerated!

If you want a divorce, it doesn't matter whether she "agrees" or not. California is a no-fault divorce state, which means that the spouse seeking the divorce does not have to satisfy a judge that he/she deserves one. California courts have no authority to deny a spouse's divorce filing no matter how much the other spouse protests.

Whether you can get a divorce is one thing, but how it will happen is another. Spouses often litigate over child custody and visitation, division of assets and/or spousal support. These fights are often quite nasty and very expensive.

The fact that much of what you owned was in your wife's name does not necessarily mean the law will regard it as hers. If the two of you comingled your assets then you probably formed a marital community and a portion of what she claims would be legally yours. (So would a portion of her debts, so be careful.) By the same token, she may well be entitled to a portion of your 401k, but certainly cannot claim all of it.

Fighting for all of this will cost money, since you will want to have an attorney representing you. Attorneys can't handle divorces on a contingent fee basis, so you might need some time to find one who will accept a workable payment plan. Be careful to weigh the costs against the benefits, though; there's no point spending more on legal bills than you get from the divorce, especially since the litigation will be emotionally draining.

Good luck.

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Answered on 9/01/04, 9:05 pm


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