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My ex-husband is a mortgage banker and has come upon some hard

times. He wants me to...
My ex-husband is a mortgage banker and has come upon some hard times. He wants me to lend him $20K from my portion of the 401k settlement, but he has plenty in his 401k to solve the problem. But for some strange reason that he can't really explain, he's convinced that if he takes the money out of the 401k to prevent foreclosure that his company is going to fire him, which makes no sense and sounds illegal to me. Plus I've only been getting about half of my alimony over the last few months because he's taken a big pay cut. Should I lend him the money or make him take it out of his own 401k since he has it, and can his company fire him if he takes it out to prevent foreclosure?
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Answered in 6 minutes by:
5/1/2010
Daniel Solutions
Daniel Solutions, Divorce Lawyer
Category: Family Law
Satisfied Customers: 9,934
Experience: Practicing Attorney for over 15 years
Verified

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.

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Customer reply replied 7 years ago

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.

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Customer reply replied 7 years ago
Forgive me, but this is my last question. As I asked earlier, I am lucky to get half of my alimony from him every month. What can I do to make sure that I get the full amount of my alimony, and he can't shortchange me just cause he's playing poor mouth. You other answers were extremely helpful, but I'm supposed to be getting $4500/month and I'm lucky if I get $2,000 a month. What are my options in this situation? You other answers have been extremely helpful, and I promise this is the last. I'm a grad student and that alimony is all I have to live on.

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.

Daniel Solutions
Daniel Solutions, Divorce Lawyer
Category: Family Law
Satisfied Customers: 9,934
Experience: Practicing Attorney for over 15 years
Verified
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Daniel Solutions
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Daniel Solutions, Divorce Lawyer
Category: Family Law
Satisfied Customers: 9,934
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