LEONARD M.WEINER, ESQ, Ph.D.

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LEONARD M.WEINER, ESQ, Ph.D.

(212) 370-1660

Divorce Solutions

Divorce Solutions

(212) 370-1660

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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 three years of our marriage. I left, and we agreed to share custody of the children. After a year of separation, we divorced. Six months before our divorce paperwork was even commenced, I lost my job due to downsizing. Now divorced for almost six 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 nine years in the approximate amount 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 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 were filed with the county clerk, your rights to claim any income earned or assets acquired after that time by the other party terminates.

To accurately answer your question, therefore, it 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 your marriage. You do not have any claim, however, to any part of that retirement account that was earned after the termination of your marriage.

Leonard M. Weiner, Esq./Divorce Solutions

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