Let me try to explain. When a person works in any career where they serve in the financial industry a company has the right not only to review your personal credit history and past as well as use it a a factor to employ or even retain you if they believe somehow your personal financial issues can affect your job. If he taps into his 401K that would be easily traced by his employer where as a private loan from you would not be so easy to track assuming he complies with the loan terms and you do not have to sue him to recover the funds.
Now, keep in mind that you should follow all precautions to make sure your loan is protected and you can recover against him if he doesn't pay.... in other words, don't just do this on a hand shake. Your divorce attorney would be able to draft the repayment promissory note to protect your intest and also make him liable for any early withdrawl penalty and/or fees you would have to pay.
So he isn't being irrational when he says taking money out of the 401k could conceivably get him fired, so I have to lend him the money to prevent the house being foreclosed upon. Two more questions then: if the lawyer draws up an IOU is it still binding if he eventually winds up having to decare bankruptcy; and what do I do about the fact that he's only giving me half of the alimony that he agreed to and is stated in the divorce decree.
Yes it could get him fired.
It is up to you if you wish to lend him the money or not as that has to be a personal decision for you. He can seek refinancing of the mortgage or obtain the money from someone else. However, I suspect he is attempting to keep the NEED for additional money hidden from his employer for fear, which can be reasonable, that he would lose his employment.
The lawyer would draft a Promissory Note because IOU or similar agreement to repay many not be sufficient to force payment if necessary. Your attorney would know how to draft such as agreement because they're not difficult. I do at least two a month since the economy has "tanked" there are many private loan where either the person seeking the loan does not qualify for a traditional bank loan anymore or the person seeking the loan works in the financial industry. Regarding the fear he may go bankruptcy can easily be addressed by your attorney. Alimony and child support are not removed by bankruptcy, so your attorney can write the loan as a delay in alimony that way if he does go bankrupt the money owed to you is clearly marked as alimony so even after all his other debts are wipe clear he would still owe you the money as it would be alimony. I'm sorry if I confused you but just know there is an easy way of solving the problem. I only appears complicated because you're not an attorney and this is one of those things which makes perfect sense to attorneys.
Your attorney can file a violation or contempt petition to obtain a court order for the alimony ordered. The judge will give you a Judgment in the amount of the arrears. Now what you do with the Judgment is up to you. You can garnish his wages, which may have negative affect on his job, attach property or assets, or you can use it as leverage where you give him an line where either he starts paying or you file the judgment which will result in his employer finding out once his wages are garnished.
I don't mind the questions. I want you to walk away comfortable in understanding what I'm trying to express.
DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.
The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).