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WHO IS THE LEGAL SPOUSE UNDER ERISA?


Guest MRS GAERTNER

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Guest MRS GAERTNER

MY HUSBAND AND I WERE MARRIED IN AZ IN 1987 AND LIVED TOGETHER UNTIL WE SEPARATED IN 1993

ALTHOUGH WE NEVER AGAIN MAINTAINED A HOME TOGETHER WE NEVER DIVORCED OR MADE ANY ARRANGEMENTS ON DIVIDING OF OUR ASSETS. WE SIMPLY MAINTAINED SEPARATE HOMES. ON AUG. 15TH OF LAST YEAR MY HUSBAND TOOK HIS LIFE. FOUND AMONG HIS PERSONAL THINGS WAS A DIVORCE DEGREE ALLEGEDLY ISSUED FROM A MEXICAN COURT DISSOLVING OUR MARRIAGE IN 1994. FURTHER WAS A NEVADA MARRIAGE LICENSE TO ANOTHER WOMAN IN 1994. APPARENTLY THEY HAD MAINTAINED A HOME TOGETHER IN COLORADO FOR A FEW MONTHS. IN THE SUPERIOR COURT OF AZ WE HAVE ESTABLISHED THAT THE MEXICAN DIVORCE IS NOT LEGAL EVEN IN MEXICO AND COULD NOT LEGALLY TERMINATE OUR MARRIAGE. THE COURT FOUND I WAS ASTOPPED FROM CONTESTING THE MARRIAGE OF HE AND THE OTHER WOMAN AS I DID NOTHING ABOUT IT TILL AFTER HIS DEATH. THE FALSE CLAIM BEING MADE BY THE OTHER WOMAN THAT I HAD KNOWLAGE OF THE DIVORCE AND THEIR MARRIAGE BEFORE HIS DEATH. SINCE THERE WAS NEVER A LEGAL DIVORCE OR SETTLEMENT BETWEEN MY HUSBAND AND I, DOSE THE STATES ASTOPPLE ISSUE DICTATE THE LEGAL SPOUSE FOR PURPOSES OF ERISA ON OUR 401K?

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two comments:

First, when you leave a message on this (or any) message board, please do not use all capital letters. It is very hard to read. Thanks.

Second, you need some legal advice, probably someone who is competent in family law and also who understands the "spousal rules" under ERISA. Be sure that your advisor is familiar with Internal Revenue Code section 417 and the regulations under that section.

One other point: to the best of my knowledge, "spouse" is not defined in federal law (I am not an attorney), so state law will likely be used to determine who that person is.

I'm a retirement actuary. Nothing about my comments is intended or should be construed as investment, tax, legal or accounting advice. Occasionally, but not all the time, it might be reasonable to interpret my comments as actuarial or consulting advice.

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Guest PeterGulia

Although it would be inappropriate for me to advise you, I'm willing to talk with your lawyer about methods she or he might pursue. Your lawyer may e-mail me at PeterGulia@msn.com.

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Guest MRS GAERTNER

Thank you for your response, and your help on message boards, this is the first time I have ever used one.

I do have a domestic relation’s attorney; we have been fighting this thing for a year now. We were completely taken back by the ruling of the probate commissioner in favor of the other woman who in fact was not divorced from her past 3 marriages as well. We do plan to take this to the appeals court. I have two more questions 1. ERISA does not define the term spouse? 2. Even if the ruling stands that she was the spouse at the time of my husband’s death do I still have an interest in the 401k from the time we were married to the time of the alleged Mexican divorce?

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