QUESTION
Once a divorce is filed can spouse legally withdraw or borrow from 401k?
Asked on Nov 14th, 2012 on Divorce - California
More details to this question:
It was filed last week and he was served this week, his father is chief of sheriffs dept and has friends that are judges, lawyers and friends that work in courthouse, I know he got word of filing and honestly think serving was delayed, to give him time to move assets.
12 ANSWERS
Personal Injury Attorney serving Pacific, MO
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Melvin G. Franke
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Yes, but it can be used against him in Court.
Answered on Apr 30th, 2013 at 11:51 PM
Steven D. Dunnings
If you don't have a lawyer, you need to hire one. A motion should be filed to get a restraining order to prohibit selling, destroying or secreting marital assets.
Answered on Nov 15th, 2012 at 9:07 PM
Dennis P. Mikko
Unless there was a court order preventing the moving of assets, he can move them. However, if asked, he will have to account for the funds moved as they may be marital assets and become part of any property settlement. There is a paper trail of the movement or sale that can be obtained through proper discovery channels.
Answered on Nov 15th, 2012 at 9:06 PM
Cohabitation Agreements Attorney serving Cincinnati, OH
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Cathy R. Cook, Attorney at Law
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Until your husband is served with a restraining order prohibiting him from disposing of assets, he is free to withdraw from or borrow against his 401k. Of course, he will be held accountable in the divorce property division for the monies removed.
Answered on Nov 15th, 2012 at 9:06 PM
Divorce/Family Law Attorney serving Carlsbad, CA
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Anne B. Howard, A Professional Law Corporation
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Once he's served there are automatic temporary restraining orders to stop him doing this. Set a court hearing to stop him taking loans out without your permission. Maybe the court can order him to pay it back. With his contacts you should get an attorney to make sure your rights are protected. They may give him legal advice about moving money before he was served but I do not think they would delay service - it's not worth their jobs. If you used the Sheriff, it can takes ages to get service done as it's low on their priority list.
Answered on Nov 15th, 2012 at 9:05 PM
Probate Law Attorney serving Colorado Springs, CO
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John E. Kirchner
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If you are in Colorado there is an automatic injunction prohibiting either party from disposing of marital property except for normal living expenses without court order or consent of the other spouse. That injunction is in effect from the time the petition is served until the case is over. Even though he may or may not have violated the injunction, the divorce judge can still treat the overall property settlement as including whatever he took and tried to hide.
Answered on Nov 15th, 2012 at 4:31 AM
Suzanne H. Lombardi
In Alaska once a divorce is filed all assets are frozen. If you believe that assets are being moved you need to alert the court. An attorney can help you do so.
Answered on Nov 15th, 2012 at 4:16 AM
Criminal Defense Attorney serving Deltona, FL
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R. Jason de Groot, P.A.
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You really need an attorney for a divorce, especially when things like this happen. Many circuits have standing orders that neither spouse can do this sort of thing.
Answered on Nov 15th, 2012 at 4:09 AM
He will have to disclose the w/d and/or transfers b/c you are entitled to a portion of it regardless of where the monies are presently located.
Answered on Nov 15th, 2012 at 4:08 AM
If he was served, he cannot withdraw. If not, he can. You can discover this by subpoenaing the records of the 401(k). Even if he did, it is still community property and you will receive you community property share.
Answered on Nov 15th, 2012 at 4:04 AM
Family Law Attorney serving West Bloomfield, MI
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Law Offices of Eugene Lumberg and Eric S. Lumberg
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There should be an Order that preserves all assets of the marriage. If not, there will be a paper trail of any withdrawal that can be addressed during the divorce process. You should hire an attorney to protect your rights and make sure all assets are divided.
Answered on Nov 15th, 2012 at 4:02 AM
Once a divorce is filed, it is a violation of the standard restraining orders in effect against both parties to take any money out of any account without a written agreement from the other side or a court order, Be very careful on this point as a violation of the court order can constitute contempt of court which carries fines and possible jail time.
Answered on Nov 15th, 2012 at 4:00 AM