spouse never signed to rollover 401k???!

[Guest sidneysheldon]

my husband recently went out on permananent disability from his 30+ yr job. 401k was over 350k. he rolled it over into several IRA's. we have recently separated & i have discovered that he has spent all but 150k of the $. my lawyer says i am entitled to 1/2 of what is left, but he has total control, & continues to spend wildly! how did this happen? shouldn't i have had to sign something when he rolled this $$ over? I have never signed anything that allowed all this $ to go into his name only. help?!!

[KJohnson]

For many 401(k) plans there is no requirement for a spousal signature or consent when an amount is distributed from the plan (whether or not in the form of a rollover).

While in the plan your husband was required to name you as the 100% beneficiary of his account unless you agreed otherwise. However, once he is eligible for a distribution, your consent was not required to enable him to "roll" the account over into an IRA.

There is an exception if the 401(k) plan was subject to the "joint and survivor" requirements. In that case your husband was required to obtain your consent. You should try and get a copy of the Plan's summary plan description or SPD to determine whether the joint and survivor rules were applicable to his 401(k) plan.

[KIP KRAUS]

Excellent response KJohnson.

sidneysheldon:

I don’t know what the laws are in the state that you live in, but I would ask my attorney why he/she says you are only entitled to 50% of what’s left. Most of the QDROs I’ve seen in New York state base calculations on an account balance as of a certain date and then ask for a % or dollar amount based on contributions and earnings to the 401(k) plan during the years of marriage. The result may very well be 50%, but you may be able to get a % of the totals of all his account balances in his rolled over IRAs as of a certain date.

I hope I’m making sense?????????????

[RCK]

I think that the key here is that, as I read the question, they are still not divorced. So that would be why she is entitled to only 50% of what is left. As long as the distribution from the 401(k) did not require spousal consent, he was free to spend the money as he saw fit.