Legal Question in Family Law in Texas

I was divorced back in 1995, at that time my ex-wife was given 50% of my 401K plan at that time. I think the amount was about 2500 dollars. She has never gone to get the money and when I tried to get the money from the 401 plan they would not allow me to remove it and give it to her so she was required to go and get it from them. The 401 people also said that I could not do anything with that account until she had taken her money out of it. In 2005 my son came to live with me and we went through custody battle which gave me (the father) custody of the child. Now my ex-wife owes me child support and is delinquent in payments. My child is now 20 and in the military. Is my ex-wife still entitled to the 401K money? Since the custody battle has occurred is she still entitled to the 401 money? She has never picked it up and I am wanting to roll it over into another 401 plan.


Asked on 2/18/11, 7:58 am

1 Answer from Attorneys
Mark Dunn Mark D. Dunn

What your company told you - "that you could not do anything with that account until she had taken her money out of it" - is false. You may have to sue the 401k folks to get your money (it would be a lawsuit for conversion). Send them a demand letter first.

In the alternative, you could prepare a QDRO for them to distribute to her her part of the money. Don't do this.

As for collecting your child support out of her part of the 401k: Do you have a judgment for the back child support? An order that shows the AMOUNT of arrearage? It makes a difference.

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Answered on 2/19/11, 8:03 am


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