White Plains, NY asked in Divorce for New York

Q: What happens a husband takes Out 401k funds prior to divorce being filed (at age 60-NY)

What happens if my husband and I separate and he purposely Files for divorce at the age of 60 and withdraws his 401k funds in case I later file for divorce?

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4 Lawyer Answers
Michael J Stachowski
Michael J Stachowski
Answered
  • Buffalo, NY
  • Licensed in New York

A: Nothing substantial. He must account for the funds. Under eligible distribution you are entitled to a share that was acquired during the marriage. Majauskas v majauskas sets the formula. The months of employment over the months of the marriage x 1/2. That’s the marital share if it was all acquired during the marriage. 1/2 is yours even if he withdrew it then filed for divorce. You need to consult an experienced Matrimonial lawyer who will guide you past his attempts at secreting assets.

Michael J Stachowski
Michael J Stachowski
Answered
  • Buffalo, NY
  • Licensed in New York

A: The fraction is the months of the marriage over the months of employment x 1/2 I hit answer and realized I inverted them

George E. Patsis
George E. Patsis
PREMIUM
Answered
  • Lindenhurst, NY
  • Licensed in New York

A: Whether the funds are held in a 401(k), a bank account, or cash they remain a marital asset subject to equitable distribution. A Court would certainly frown upon this type of behavior and would likely hold the husband liable for any early withdrawal fees, penalties, and additional taxes incurred.

Lawrence Allen Weinreich
Lawrence Allen Weinreich
Answered
  • Garden City, NY
  • Licensed in New York

A: Since it was done during the marriage, your husband would have to account for the monies withdrawn and what was done with it. If it was used for marital purposes such as paying off a mortgage that would be OK but if moved to a separate account, it would still me marital monies. Keep in mind, the court can offset what he took against other assets in order to give you your share. Your portion of the 401K is determined by a formula wherein the number of months married is the numerator and the number of months in the 401 k is the denominator.

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