San Diego, CA asked in Family Law, Collections and Child Support for California

Q: If I have a judgement for child support arrears, can I have the judgement debtor's 401(k) levied?

In my divorce my husband was awarded the marital home, but was ordered to pay child & spousal support. I now have an arrears judgment against him for 6 figures. I am trying to collect on the judgement. He has a 401(k) and two homes, one being in CA where I have my judgement, and another which is out of state. Aside from that, I don't know what property he has and I do not think he is working. I can't do a debtors exam since he is out of state (and wouldn't show up anyways. I had a writ of execution served on the 401(k) holder but they have not released any funds to the levying officer and it has been over the 10 day period. What can I do? Should I find another assets to pursue? Should I try to get a levy for the sale of the home in CA? I've called several judgment attorney's but they don't seem to willing to help.

1 Lawyer Answer
James L. Arrasmith
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  • Collections Lawyer
  • Sacramento, CA
  • Licensed in California

A: In California, a 401(k) account can be levied to satisfy a judgment for child support arrears. However, there are specific procedures that must be followed, and the process can be complex. Here are a few points to consider:

1. ERISA protection: Most 401(k) plans are protected by the Employee Retirement Income Security Act (ERISA), which generally prohibits creditors from seizing retirement funds. However, child support and spousal support judgments are exceptions to this rule.

2. Qualified Domestic Relations Order (QDRO): To access the funds in a 401(k), you may need to obtain a QDRO from the court. This is a special order that recognizes your right to a portion of the 401(k) based on the child support judgment.

3. Levy on real estate: You can also try to levy the California property owned by your ex-husband. This process involves obtaining a writ of execution and having the levying officer record a lien against the property. If your ex-husband tries to sell or refinance the property, you may be able to collect on your judgment from the proceeds.

4. Out-of-state property: Pursuing the out-of-state property can be more challenging, as you may need to domesticate your California judgment in the state where the property is located and then follow that state's procedures for enforcing the judgment.

Given the complexity of your situation, it is advisable to continue seeking legal assistance from attorneys who specialize in enforcing judgments. You may want to expand your search to include attorneys who focus on family law or collections. Additionally, consider contacting your local bar association for referrals to attorneys who may be able to assist you.

Remember, enforcing a judgment can be a time-consuming and challenging process, but persistence and proper legal guidance can help you achieve the best possible outcome.

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