My husband and I have not been getting along very well lately. He is now filing for divorce and has met another woman. About 5 to 6 years ago, he pulled all of his retirement out and spent it. It is gone.
I had no say in this because it was under his name. I worked at companies that did not have a 401(k) so we were going to rely on his for retirement (approximately $50,000). We have been married 36 years.
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Our house is in bad shape and we still owe $30,000, plus we have two credit cards with $12,000 each and our Parents Plus loans, which we took out on behalf of our son. My husband is on disability and I am working.
Since he spent his retirement savings, can I use that to say that I want any of the equity in the house which is about $20,000? That is, if we can find a buyer. It is in such bad shape that I wonder if we could even get that $20,000 out of it.
Mary Grace in Texas
Dear Mary Grace,
I’m sorry this happened.
Texas is a community property state. What you bring to the marriage, you take out of it. If your husband had not cashed out his retirement account, a judge would likely award you half of whatever he had accumulated during your 36 years of marriage. The fact that it was in his name and he spent those funds may stand in your favor now that your husband has filed for divorce.
Another legal and moral issue for you to ponder, and one your divorce lawyer should look into: He took $50,000 out of his retirement account, but did he actually spend it? And, if so, what did he spend it on? Is there evidence of this spree and/or receipts? Did you have marriage troubles then? Some people do empty accounts or try to hide money prior to a divorce, and there is inevitably a paper trail.
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You’re in a difficult position. You do appear to have a strong hand going into this divorce. Your husband acted unethically by doing this. But there is another side to this divorce that is unavoidable: He may have spent the money and, even if you do manage to glean half (or more than half) of it back, you face the prospect of a retirement as a single person with increased costs.
Assuming you married in your 20s, you would now be 56 years of age at least. By the time you reach that age, retirement experts recommend that have four or five times your annual salary stashed away. That’s rarely the case, of course. People in that age group have a median savings of approximately $117,000, according to data from Government Accountability Office analysis.
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But you’re not alone. Just over half of people (54%) own stocks, which includes individual stocks, as well as employer-sponsored 401(k) plans, mutual funds or an IRA account. And two-thirds of Americans don’t have access to a 401(k) plan. You will have to watch every cent and, if possible, use your husband’s behavior as leverage in your divorce settlement.
Will the judge decide that your husband should take on the $30,000 credit-card debt, given that he cleaned out a retirement account that was built up during your marriage? What will happen to your home? What do his Social Security benefits look like? (You can read more on that here.) Have you spoken to your son or other close relatives or friends about your living arrangements post-divorce?
These are all the questions you should ask, in addition to your husband’s empty retirement account. There’s a big upside that a new, single life awaits.
I wish you the best of luck.
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