Question:

My husband signed a 401K waiver of all rights dismissed, waving all of his rights to my 401k. We are now divorcing and my attorney has informed me that my husband still has rights to my 401k in the event of our divorce or death. The attorney stated that we should have signed the waiver in front of a judge even though it was notarized. My thought on this is if we had known that we would have done it.  Isn’t that the purpose of having 401k laws - to create waiver documents so your spouses can’t get your retirement? My kids are my beneficiaries not my spouse, unless I was to die then all three would get my 401K. Also, how far along back can they check my bank statements?

Answer:

Even though the execution of the forms was not valid, you still have an argument that it was his intention to waive his right to your 401(k) account.  This may be helpful if your case ends up going to trial. In situations like this where a person is waiving a substantial financial interest, there are usually more stringent execution rules.  In this case, it has to be executed in front of a judge because the judge can ensure that the person waiving a substantial right understands what he’s doing.  In regard to checking your bank statements, the opposing party can go as far back in time as the marriage and sometimes farther.  It’s not likely that they will do so unless there is reason to suspect that the bank statements contain information relevant to the subject matter involved – in this case, money, marital assets.  The general rule is that the information sought has to appear reasonably calculated to lead to discovery of admissible evidence. 

Claudia J. Weaver is an Associate Attorney with Cordell & Cordell, P.C., in Overland Park, Kansas. Ms. Weaver practices exclusively in the area of domestic relations.