Greetings. You must first have a signed separation agreement or court order which states exactly how much will be dispensed from the 401(k) to you. Then, you will need to have a QDRO (Qualified Domestic Relations Order) drafted to take any funds out of the 401(k) without a tax problem. After the order is drafted, it must be qualified by the plan administrator. Then the order must be entered. Welcome to an attorney’s life, right?
So, after the separation agreement, we start drafting the QDRO (and they are usually entered before the divorce). Hope that helps.
Janet L. Fritts
Attorney at Law
4101 Lake Boone Trail, Suite 500
Raleigh, North Carolina 27607
The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service but a full discussion with an attorney should be undertaken before taking any action.