Legal Question in Family Law in California

Husband incarcerated for 245(a) (1) w/IRA

Husband/Defendant is incarcerated for 245(a)(1), on his spouse and 3 other victims (crimes occuring on three seperate occassions [now def. has 1 strike and is awaiting court for the second incident]). While employed Def. had a 401K - Defendant terminated (due to the above) - rolled over the 401k, assigning his mother beneficiary and power of attorney. What rights if any, do I, the spouse have? Defendant leaving his immediate family (wife and 2 small children) BROKE AND W/ HIS BILLS!!


Asked on 7/26/01, 5:27 am

1 Answer from Attorneys
John Hayes The John Hayes Law Offices

Re: Husband incarcerated for 245(a) (1) w/IRA

Once you file for divorce you are entitled to half of all assets acquired during the marriage, including the 401k. The only time the beneficiary would be granted the 401k was if he was to die. I would recommend that you contact the local court and ask if they have a family law facilitator or any type of program that helps woman get a divorce. You can't cash out the IRA since it is for retirement, but you can role it over into your own retirement plan so you have something when you retire. Once you get divorced your husband is also responsible for half of all the debts incurred during the marriage. You probably won't see that money until he is released and gets a job, but at least you have the judgment so when he finally start making money you get reimbursed for his half. There are many state and federal agencies that can help you get back on your feet. Good luck.

John Hayes, Esq.

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Answered on 7/27/01, 1:39 am


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