Legal Question in Family Law in Minnesota

Divorce & 401k

I was told I may be able to get some of my ex's 401k when he dies or retires even though it wasn't addressed in the divorce 5 years ago. At the time he only had $250 in it. We were married for 30 years.

Asked on 3/30/07, 5:11 pm

1 Answer from Attorneys

John Jesperson Minnesota Lawyers - Jesperson Law Offices

Re: Divorce & 401k

Thank you for your question regarding the division of a 401(k).

I think it highly unlikely you would be entitled to anything from your former husband's 401(k), regardless of how long you were married.

First, it appears your divorce decree does not provide for a division of his 401(k) between you. If that is the case, and if you were aware of the plan at the time of the divorce (it was not concealed, for example), then there is nothing you can do. Your divorce judgment was "final" when the decree was entered and cannot now be modified.

Second, even assuming you could somehow reopen your decree (which generally requires a showing of fraud, and in any event, must be requested within one year of your divorce), if the value of his interest was only $250 at the time of divorce, then you would only be entitled to $175, plus some interest. You would not have any interest in benefits he acquired following your divorce.

Good luck.

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Answered on 4/02/07, 11:41 am

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