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TJ, Esq.
TJ, Esq., Attorney
Category: Criminal Law
Satisfied Customers: 11783
Experience:  JD, MBA
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i suspect my ex husband forged my name on 401K distribution

Customer Question

i suspect my ex husband forged my name on 401K distribution documents in 2009 to take an early distribution. i was recently contacted by the irs stating that we owe taxes on returns from a 1099 for that year. only when the irs contacted me did i find out about the 1099. the year the taxes were done, he faxed me the last page of the returns for my signature, which of course I signed but never closely reviewed the 1040 form which would've been on a different page. he won't respond to my questions now regarding if he signed my name on the 401k distribution request docs. what should i do?
Submitted: 5 years ago.
Category: Criminal Law
Expert:  TJ, Esq. replied 5 years ago.
Hello and thank you for allowing me the opportunity to assist you.

You should be able to find out about the 401k by contacting the administrator, and by pointing out that per the divorce decree you are a part owner. The administrator should provide documentation relating to distributions. If it turns out that there was a distribution, then you'll need to take this issue to the divorce court if your ex should not have taken the distribution. Keep in mind that he may have the right to take out a distribution from his own portion of the 401k. But if he took what is to be your portion, then he can be held in contempt. He may be held in contempt if the forged your name as well. If you don't have a lawyer, then you will probably want to hire one if you plan to take this to the judge.

Have I satisfactorily addressed your concerns? If not, then feel free to let me know, as I will be happy to clarify my answer or help with your follow-up questions. In the meantime, please remember to click the green accept button so that I will receive credit and compensation for my time (doing so does not end our session). Positive feedback is always appreciated as well. Thank you and good luck!
Customer: replied 5 years ago.
MaybeI wasnt clear enuf. We only recently got the divorce 2011. We were married then and not even separated. I think he forged my name to get the distribution at the time. I'm just now finding out about it 1 1/2 later and we now happen to be divorced. By him not telling me, he did not allow me the choice to be informed cuz I wouldve filed "Married but Seperate" if I had known he'd taken the distribtution. I've been trying to ask the Admin at his former Co if spousal disclosure was a requirement of the distribution and they won't tell me. I've asked my Ex the same question, he won't answer me. Now I'm on the hook for a $3,000 tax bill that I didnt even create. How do I get the information I need at this point?
Expert:  TJ, Esq. replied 5 years ago.
I see. That's a different matter entirely.

Why do you think that your name was forged on 401k documents? The 401k should only list your husband as the owner (since he is the employee), and therefore, he would not have needed your signature for anything at the time. In order to view the documents in question, you may want to contact the IRS first to get copies of the 1040 tax return. With that, you'll know exactly what happened.

However, I suspect you're going to lose the legal argument here. Your signature wasn't likely required on the 401k distribution (I don't know why it would have been required since it wasn't your plan), and you signed the 1040 to make it a joint filing. Therefore, I do think that you're on the hook with the IRS. Your best plan of action may be to take this issue back to the divorce judge and ask that the unknown debt to the IRS (that is, the debt that you were unaware of when you were divorced) be assigned to your ex since he took the distribution for himself. But if it turns out that he used that money for any family expenses, then the judge may rule that you must pay that part of the debt.

I wish I could offer more encouraging news, but that is my honest opinion of the situation. I hope it helps. Please remember to click "accept."
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Customer: replied 5 years ago.

I think my name has been forged because he's been caught lying on some other financial related documents. Also during the time he took the distributions, we were behind on all of our bills including our mortgage. He was issued the check in the amount of $5,300.00 If he had that kind of money,he never used it to pay on the bills. Lastly, a lot of emloyers that I know of when one is married, when you have a 401K retirement, even if it belongs to you, you have to have spousal disclousre...not necessarily approval...that the other spouse is aware that the money is being distributed, thus a tax penalty will occur. Some placed DO NOT even let you take the money out unless there are 2 signatures. Percisely for the reason this happened to me I suppose. Unfortuneately my husband got the taxes done and only faxed me the last page for signature. I never saw the entire tax return from the accountant, until I got home and my signature was already on the document. If he signed my name on a possbile spousal disclosure form to get the $$$$ then I would think that's illegal. Your thoughts?

Expert:  TJ, Esq. replied 5 years ago.
Hi again.

You do bring up a good point. In some cases an employee's spouse must consent to a distribution. I think that the best thing is to bring this to the judge who handled the divorce. If you can show that your name was forged, then the judge may order your ex to pay the entire IRS bill. You can also simply make your allegation of forgery, and then ask the judge to order your ex to produce the document in question.
Customer: replied 5 years ago.

But if I made the allegation of forgery, wouldn't that be a criminal matter? If the plan admin says, "no you did not need to be informed" then I wouldn't I have waisted the court's time? Which brings me to another point in this matter, how do I get the employer to give me info on what requirements are needed for an early distribution? By the way, the divorce papers already say he has to pay taxes from an earlier outstanding debt. I'm trying to build a case that if I signed the tax return under false pretenses, I could get him prosecuted or qualify for the innocent spouse provision. As it stands today, I don't qualify for the innocent spouse. If he committed forgery, maybe the IRS would reconsider. The key for me is to get the employer to tell me if indeed my signature was required. The whole game changes if that was a requirement bcuz I never signed a document. Your thoughts?

Expert:  TJ, Esq. replied 5 years ago.
Hi again.

No, this isn't a criminal matter ... it's a civil matter. It won't be a waste of the court's time because your primary argument is that you shouldn't be responsible for the IRS debt even if there wasn't a forgery ... you shouldn't be responsible because your ex used the money without your knowledge for his own personal gain. That is an argument to the divorce judge. The argument that you're contemplating is an argument to the IRS. Perhaps if you first take this to the state court, make your arguments, then you can get your hands on the document that you're seeking, then use that to also make an argument to the IRS.
Customer: replied 5 years ago.
Relist: Answer quality.