Legal Question in Family Law in California

I have been married for 20 years. My wife and I seperated over 2 years ago. I was laid off from my job a couple of months ago and need to cash out my 401k in order to pay my living expenses. The 401k is from a job I worked over 5 years ago and is not active. Our son lives with me full time. My wife does not work (never has) and currently lives with her monther rent free. We have been talking about divorce about a year but have nothing working at this point.

If I cash out my 401K (and pay the penalties) can my wife claim 1/2 when we do eventually get divorced? Would it make a difference if I had a record of what it was spent on? My son needs braces and has no bed to sleep in and I owe my disabled mother $5k. Thank you.


Asked on 11/04/11, 10:59 am

3 Answers from Attorneys
Thomas Walley Good Wildman Hegness & Walley

Yes, she could make that claim. A simple solution is to divide the 401k with her since it's community, then you can do whatever you want with your half.

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Answered on 11/04/11, 11:44 am
Arlene Kock Law Offices of Arlene D. Kock APLC

There may be many other elements to consider before doing a partial division of what seems to be a community asset. You are exiting a long term marriage. There may be other assets and liabilities to divide as well as a need to address spousal support. You mentioned you have a son. If this child is from the marriage , there may be child support issues that require careful analysis. Please meet with a skilled family law attorney to explore your legal options.

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Answered on 11/04/11, 1:30 pm


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