Can 401 k plan do this?

I have a situation I am hoping someone can help me with or at least point me in the direction of help. I have a small 401 k plan with the City of NY. I made contributions to it while employed with the city but all contributions stopped once I left my job in 2006. Recently I decided to withdraw $1000.00 and roll the rest over into my new 401 with my new employer. I filled out the necessary paperwork with the city and received a letter stating my request was denied due to a pending domestic order. I called to find out what they were talking about and was told that since I had a “divorce pending” they needed a domestic order to proceed with my application. In 2008 I had made a hardship withdrawal request to avoid eviction. I explained in the letter that I was a victim of domestic violence and financial exploitation at the hands of my husband and was in process of divorcing him. In the interim, my husband and I separated but I did not divorce nor did we legally separate. I have not considered divorcing at this time and have no idea if I will in the future. They explained that I was “flagged” as a result of the letter thus their domestic pending order request. (I never received any correspondence from them in regards to this back in 2008 nor did they every respond to my request for a hardship withdrawal. I am only learning all this now). I have explained that I am not divorced but they said they still need a waiver signed by my husband. I explained that attempting to approach him may put me at risk but they still said I need his signature. Today I received the waiver form in the mail that he is to sign. One of the statements in the waiver they want him to sign says he is acknowledging that he and I are “contemplating the commencement of a divorce or are in the process of a divorce”. This is not the case and I have repeatedly told them this. In addition to having the waiver notarized, they want my husbands phone number ” so he can be contacted” as well as a copy of his ID. I dont understand what they are trying to do. Why have him sign the statement about a divorce that is not happening? The rest of the statements in the waiver are fine and basically says he waives his rights to my money, I can do what I want with it, etc. I do not want them to call him. I feel this is unnecessary and intrusive and worry they could say something that would push him over the edge. I really need some guidance and assurance that the fund is operating within the confines of the law and my rights are protected as well. Thank you in advance for your assistance.
Thank you for the responses. I understand the law as it is written, although I dont agree with it. My issue is the fact that they want me to have my husband sign this waiver which states “{my wife and I} are contemplating the commencement of a divorce or are in the process of a a divorce”. While I did take insignificant steps towards a divorce in 2008 (really just speaking with a lawyer), I never went through with anything and have never filed any paperwork AND my husband is unaware of this.

Posted in Landlord Tenant Law.


  1. Legally, your husband has a right to claim some of your 401k money, and the 401k plan has a legal duty to make sure you don’t withdraw money without his permission. It sounds like they are making reasonable attempts to make sure he is being informed. However, the laws on this are convoluted. If you are a victim of domestic violence, there might be a way around this, but I don’t know all the rules in your state.

    It might be best for you not to let your husband to know about this 401k, as he may attempt to claim his half. If you get a divorce in the future, you can slip in a clause in the divorce settlement that all 401k’s belong to you. (Also, you should get a divorce, the man is not to be trusted. Move on.)

  2. I disagree with the answer above. Your husband MAY have some claim to the 401k depending many factors but it is not cut and dry. Retirement account a subject to some protections in most states.

    Unfortunately, there is no easy answer to this. I suggest you speak with a lawyer. This could be an indication that your husband is filing or has filed for divorce. Good luck.

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