Yes he can do this without your permission. It won’t do him any good. If you are separated (matters not if there is a signed paper) you are entitled to half the 401K value at the time of separation (when one of you moved out). Separation is when you start living separate and apart. Not when you sign something.

Again you are not separated and won’t be until one of you moves out. If he terminates the 401k then it will quit building equity (none of the are right now), but it doesn’t absolve your right to it (half of it). Even if he starts a new one and you are not separated you will be entitled to half of that one too unless you are separated.

Again, separation is when you start living apart.

Thanks Don. I contacted the company that has the 401-K and they told me it is marital property and if he terminates the account now he will pay a stiff penalty, and at some point when we do become legally separated which will be soon, the 401-K will be listed as marital property and I will be due my share. I guess I was just hoping we keep all this on the up and up but I don’t think that is possible. A marriage gone wrong becomes nothing more than a business transaction in the end. I am trying my best to negotiate a settlement agreement and not have to go to court but it looks like we are courtroom bound, which is only going to make him look bad and cost him more in the end.

He can quit contributing to the 401K and leave it untouched and he will not be charged a penalty. Half of it is still yours, but it will cease to grow. Only when you liquidate it do you incur the penalty.

I don’t know about courtroom bound. Most are settled out of court. You or he cannot file (a lawsuit) for ED till you have been separated for 90 days. Then you are looking at maybe 6 months or more before mediation then maybe a month or 2 till the trial.

I personally know people who did not get all the property settled for over 2 years. I know people who have been divorced for over a year are still fighting over property. These are people with no kids.

In my case it is 14 months and counting. Trial is still 2 months away.

He should not be able to cash out his 401(k) without your permission.

P.S. Please feel free to bring up this or any other topic on our live call-in show every Wednesday at 11:00 a.m. EST. Visit radio.rosen.com/live for details

Helena M. Nevicosi
Attorney with Rosen Law Firm

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I rec’d in the mail the other day paperwork showing that my husband has requested his 401-k be terminated. Is this something he can do without my knowledge, and can he ask that it be distributed in a lump sum or rolled over to another account without my permission? We are in the middle of negotiating a separation (his choice) but do not have a legal separation drawn up yet and are still living in the same house. I have not told him that this paperwork came in the mail yet because I’m not sure if he is trying to keep this from me.