Legal Question in Family Law in California

I am divorced from my kids' father for just about 6 years. I was perusing my divorce papers when I noticed that his 401K was listed in the community property. I have never received any monies from that account, have been on disability for quite a few months now, and *really* could use some financial help. Being that I am not 55 yet, will I be able to GET half of what is in his 401K? Please let me know, thank you.


Asked on 2/28/13, 1:05 pm

1 Answer from Attorneys

Very unlikely. If it was listed in community property, it was most likely included in the property division calculations already. Not everything gets split in a divorce, particularly things that are more connected to one person than the other, even though they are community property. A distribution from a 401k, while possible, creates accounting and tax issues. So, for example, if there is $50,000 in a 401k, and $30,000 in a stock brokerage account, and $5,000 in a checking account and $5,000 in a savings account, and a paid off car worth $15,000, it would be very common to give the 401k to the person who is the named account holder, plus $2,500 from the savings account, and give the other assets to the other spouse, to create an equal division of $52,500 to each spouse. So unless it was left out of the calculations entirely, you aren't owed a share of it. If it WAS omitted entirely, then you could file a motion for allocation of omitted assets, using the original case title and number.

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Answered on 2/28/13, 1:22 pm


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