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Ellen
Ellen, Lawyer
Category: Family Law
Satisfied Customers: 36714
Experience:  25 years of experience helping people like you.
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My ex husband and I were married for 30 years, during which

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My ex husband and I were married for 30 years, during which time he made three times my income and was able to amass a 401K that contains $660,000.00. When we divorced in 2007 he begged me not to divide up this 401K because he said the Fidelity company would charge 30% in penalties and I would have to pay income tax on my half. He has told me for years that half of this account was mine, and even told the account manager at Fidelity that it was half mine. The division was not listed in our divorce papers because he promised over and over that if I left it intact he would be certain that I got my half and I trusted him. Now he has remarried to a woman who apparently has made huge "mistakes" on her income taxes and he says he will need that money to straighten out her taxes. He is currently receiving 1800.00/ month from social security and I receive $800.00. My half of that money will last me for 28 years at $1,000.00/ month but he is taking out $3400.00/ month and at that rate it will all be gone in 15 years. Do I have any legal rights in this case?
*This chat is not intended as legal advice. It is general information that may or may not apply to your situation and should not be relied upon.*

Welcome,

My name is XXXXX XXXXX I will do whatever I can to answer your questions!

This is indeed an unfortunate situation. Were you represented by counsel during the divorce?
Customer: replied 3 years ago.
Yes, but she recently closed her office. There is no division of these funds in the divorc papers. She told me that if I listed that the account was half mine it would have to be divided right then. She also told me I was crazy for not splitting it then, but I told her that I trusted him. Our 28 year old son was killed in an accident in 2005 so we were both grieving his loss so I didn't want to make it worse by arguing since he promised me it was half mine. Please help me, I am losing my mind over this. I cannot live on $800.00/ month!
Hi Kathryn,

The reason I asked whether you were represented by an attorney in the divorce is that the failure to divide the account in the divorce would typically be considered malpractice. You may want to consider meeting with the malpractice attorney to review your divorce paperwork to see if the attorney adequately informed you of the repercussions of not including the verbal agreement in the divorce decree. Simply telling you that you were crazy for not splitting the funds may not be sufficient information for you to have made your decision

In addition to a malpractice action, you may consider petitioning the court for spousal support based upon a change in financial circumstances. If the court grants you the spousal support, you may be able to attach the 401(k) to satisfy that order.

Of course, because of the nuanced details of the matter, I suggest that you retain a local attorney. Here is a link to a free site that may assist you in locating competent legal counsel: www.Martindale.com

I would be glad to respond to any related follow-up questions that you may have.
Customer: replied 3 years ago.
Is there any reason to do that within a certain time frame? I'll have to save up some money for an attorney's fee.

Do not be overly concerned with the cost of your attorney. Consider an attorney who will give you free initial consultation or pay only for the initial consultation. If a good litigation attorney believes that you have a case, he may be willing to handle the malpractice on a contingency-fee basis and/or obtain fees from your former husband regarding the spousal support.
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