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Question #135:

I was married for almost 20 years and my ex-husband and I had two children. Our marriage deteriorated because our ideals, interests, goal and dreams changed dramatically in the last 3 years of our marriage. I left and we agreed to share custody of the children. After a year of separation, we divorced. 6 months before our divorce paperwork was even commenced, I lost my job due to downsizing. Now divorced for almost 6 months, I am still unemployed but continue to share custody and 1/2 of all expenses for the children, as agreed. My ex-husband has a 401K through his employer now for more than 9 years in the approx amt of %$50,000. By law, am I entitled to any portion of these monies even after divorce?



Under the law you would have an interest in your husband's 401(k) for that portion of his retirement account that was earned during the course of your marriage. Once you entered into a separation agreement, however, you may have waived your right to any interest in that retirement account. Furthermore, once the summons and complaint was filed with the county clerk, your rights to claim any income earned or assets acquired after that time by the other party terminates.

In order to properly answer your question, therefore, is important to review your separation agreement and your judgment of divorce to see if you have some claim to that portion of your husband's retirement account which he earned during the course of your marriage. You do not have any claim ,however, to any portion of that retirement account that was earned after the termination of your marriage.

Leonard M. Weiner, Esq./Divorce Solutions
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