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Dimitry K., Esq.
Dimitry K., Esq., Attorney
Category: Legal
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Experience:  Multiple jurisdictions, specialize in business/contract disputes, estate creation and administration.
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Long story- I cashed out retirement account from Florida Retirement

Resolved Question:

Long story- I cashed out retirement account from Florida Retirement System to purchase a new home for me and my new wife in NC. We are divorced and selling the house. Closing is next Thursday 3/28/13. My former home in Florida never sold and is in foreclosure (a lis pedens has been filed). I also have some substantial old credit card bills (related to my previous marriage ).

I will be getting approx 40,000, cashiers check I'd imagine.

1) Can I start a new retirement fund with that and if so, will it be protected from creditors?

2) Can I cash the check and put the cash in a safe deposit box without a bank record being created?

3) Can I sign the check and give it to my daughter for her to deposit in her bank account?

4) I might, or I might not eventually file for bancruptcy, what bearing would how I handle the check have on that?

I live in SC and might be moving back to Florida.
The home I'm selling is in NC.
I took out $320,000 but after taxes, attorneys, and paying my ex- I will have about that much left ($40,000 ) if that has any beariing on this.

Any other suggestions are welcome.
Submitted: 1 year ago.
Category: Legal
Expert:  Dimitry K., Esq. replied 1 year ago.
Thank you for your question. Please permit me to assist you this afternoon.

To best answer I would need to know your age, just to see if any fines or penalties may be on the horizon. Are you 59 1/2 or older at this time?
Customer: replied 1 year ago.

I am 58 but did not have fines or penalties because I met some other criteria....I can't remember what but there was not any penalty for early withdrawal.

Expert:  Dimitry K., Esq. replied 1 year ago.

Thank you for your follow-up.

That information does help. Please allow me t respond to each question in order listed.

1) Can I start a new retirement fund with that and if so, will it be protected from creditors?
You are free to start a new fund but it will not be protected from creditors. Pension plans, IRAs, SEPP plans, or any other retirement vehicle are generally NOT protected from garnishment.

2) Can I cash the check and put the cash in a safe deposit box without a bank record being created?
Yes, you can. But since there is record of you receiving the funds, creditors could potentially demand that you provide them with evidence as to where the funds went since otherwise it may be considered fraud.

3) Can I sign the check and give it to my daughter for her to deposit in her bank account?
Yes, but please know that for debt collection an in-family transfer without consideration (meaning without value) can be reversed within 6 months or even later if fraud is found or the signing the funds over was done to avoid creditors. For example if you give her the money and she signs the car over to you that is worth about $40,000, then there is nothing to reverse as the transfer was for value, but simply sending the money to your child may be considered a reversible transaction.

4) I might, or I might not eventually file for bancruptcy, what bearing would how I handle the check have on that?
It would make a large difference since under BK laws the reversals I discussed would come into play. Even if that money would be with your daughter, for example, it would still be considered 'yours' and the BK trustee could potentially go after your daughter for the funds. If the funds are in a fund, that would be considered an asset under BK laws.

Good luck.

Dimitry K., Esq., Attorney
Category: Legal
Satisfied Customers: 36753
Experience: Multiple jurisdictions, specialize in business/contract disputes, estate creation and administration.
Dimitry K., Esq. and 6 other Legal Specialists are ready to help you
Customer: replied 1 year ago.

So pretty much there is no way to protect it except, what if I purchase another house. In SC there is a 50,000 exception (i think) when you file bancruptcy for your home.


 


In Florida I believe it is an unlimited amout, if the house is your primary residence of course.

Expert:  Dimitry K., Esq. replied 1 year ago.

Thank you for your follow-up.

That is essentially correct, you cannot save the cash, but if you place it into a homestead that is protected under state law, then at least the cash, once it is turned into equity, would be protected. For South Carolina the exemption for homestead is up to $56,150 (joint owners to 112,275). For Florida it is indeed unlimited, there are acreage limits, however.

Good luck.

Customer: replied 1 year ago.

one last question...what if I invested in an annuity, deferred or one that started paying right away?


 


Thanks

Expert:  Dimitry K., Esq. replied 1 year ago.

Thank you for your follow-up.

An annuity that is not annuitized is still considered to be an asset and can be pursued. An annuity that is annuitized and one that you turn into an immediate payout turns the money that you will receive periodically into an asset which the trustee can intercept and utilize to pay down debts. It is a very good alternative but remember that with an annuity that once you turn it into a payout, the money is no longer yours, it is a payout based on terms with the insurance company but the money is now theirs.

Good luck.

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