Judge Ordered Child and Spousal Support to Be Paid Out of the Payee's Share of a 401K
My question relates to legal practice in the state of: California.
(None of the topics really fit my situation.) Can I sue the family court judge who ruled that spousal and child support due to me be paid from my share of the 401k money my ex-husband owed me in our divorce? My ex-husband went to prison for molesting my daughter and my niece. His jail sentence started while our divorce was in process. (There was a Juvenile case that was handled first, and then his criminal case was handled second. The lawyers said these cases "trumped" my divorce case, so it was handled last.)
The divorce was bifurcated so my legal status changed before the settlement. I received insufficient support prior to my ex's incarceration, I received none while he was in prison (nearly 5 years), and I am opening up a new child support case now that he is out of prison. I attempted to pursue funds he failed to pay but Child Support Services said, because the wording in the judgment, they can't collect anything from him. The wording in the settlement was that support would be paid first from my share of the 401k money my ex had to release to me.
First, how can it be legal to take money that was due to me for my retirement (i.e., MY money) and change its purpose to be, instead, my spousal and child support? The retirement money was mine to use for my retirement. I stayed home with the kids for 10 years while my ex worked outside the home. When we divorced, 1/2 of the money set aside for retirement was mine. How can money I am owed be paid with my own money?? Secondly, withdrawing that money early, as we all know, is expensive. The wording didn't even allow for using the net amount, after taxes and early withdrawal fees. After taxes and fees, the sum is substantially lower and does not come close to covering the amount he owes us... but Child Support Services looks at the total amount given to me, not the net amount. Besides, as I said, he owed me both child/spousal support AND my share of the retirement money.
I had no say in the outcome of this case. As it took place while my ex was incarcerated, he never showed to the settlement conferences. Instead, his lawyer stated, at every settlement conference, "My client refuses to settle." After several months of this, the judge settled the case, and I believe he was negligent. Can I sue the judge, or the family court?
Re: Judge Ruled That Child and Spousal Support Due Me Be Paid from My Share of 401k $
You can't sue the judge or the court, no - but are you still within the timelines of appealing the judgment?
Re: Judge Ruled That Child and Spousal Support Due Me Be Paid from My Share of 401k $
I very much doubt that you can sue the court, or the judge, but run, do not walk, to the telephone first thing tomorrow morning, call whatever major law firm is available to you and ask to speak to an ERISA attorney. I am not an ERISA expert but I do work with 401(k) plans and I do not believe this can be done. If I am wrong, an ERISA attorney will know and will also know what you can do about it if I am right.
We also have an excellent tax attorney who posts here and he may have some information as well.
Re: Judge Ruled That Child and Spousal Support Due Me Be Paid from My Share of 401k $
What would the timeline be? I have no money to do anything, and I would have done something right away if I had any way to afford it. I became sole breadwinner and parent of four kids, and my income is low.
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Thank you, cpg, I will do that. Any additional advice from other members is welcome.
Re: Judge Ruled That Child and Spousal Support Due Me Be Paid from My Share of 401k $
Could this be a typo that was actually supposed to state that the support was to be paid out of ex's portion of the 401k?
Re: Judge Ruled That Child and Spousal Support Due Me Be Paid from My Share of 401k $
It could be a clerical error or a misunderstanding of the order.
Try these resources for finding legal assistance.
Re: Judge Ruled That Child and Spousal Support Due Me Be Paid from My Share of 401k $
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Quoting
Xena
Could this be a typo that was actually supposed to state that the support was to be paid out of ex's portion of the 401k?
No... What follows is what the judgment said in regards to the Retirement Savings Plan (edited for privacy): a. The Retirement Savings Plan is awarded in its entirety to Petitioner, b. The court finds that the 401k is a community asset and had a value as of (date) of $73,000. c. The court also finds that the Respondent borrowed $18,000 against the 401(k) and that Petitioner had no knowledge of the loan. Respondent alone will be obligated to repay this loan and will indemnify and hold Petitioner harmless from the loan as well as any tax liability as a result of this loan. d. The amount of the 401(k) awarded to Petitioner will be an offset against Respondent's child support and spousal obligations.
The total value of our retirement accounts were, at time of separation, about three times the amount of this remaining retirement account. He had plenty of time to clean them out before the divorce proceedings began. The only thing left on the table by the time he went to prison was the 401(k) from his last employer (which is the subject savings plan I referred to above.)
Re: Judge Ruled That Child and Spousal Support Due Me Be Paid from My Share of 401k $
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Quoting
diane27
The divorce was bifurcated so my legal status changed before the settlement.
If the language at issue was drafted as part of the settlement of your divorce case, then your lawyer should have caught the problem and negotiated for a different outcome. Was this in fact a settlement, or was this the judge's independent decision after trial?
If this was a verdict after trial and not a settlement, did you raise an issue about the language at the time of the verdict? If not, why not? Were you represented by counsel?