Personal Finance

My ex refuses to support our kids — can I access his 401(k) for child support?

John Seetoo

Published: January 21, 2025 7:16 pm

24/7 Wall Street Key Points

• With nearly 50% of marriages ending in divorce, the percentage of separations that become contentious and may involve assault has escalated accordingly.
• Alimony and child support payment delinquency disputes frequently wind up being adjudicated in family court.
• In situations where delinquencies require garnishing of wages and benefits in order to ensure payments, 401-K retirement and pension accounts may be tapped under court supervision. 
• Cases involving family relationship disputes are often grey, and never black and white. Therefore, people will have opposing preferences and opinions based on their own experiences and how they empathize with either party in the contention.
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Divorce is rarely an easy undertaking. Unfortunately, close to half of all marriages statistically end in divorce, due to a variety of reasons. Infidelity, physical and emotional abuse, differences in having and raising children, compelled dependence, and a host of other events are all too common in this day and age. Situations that crop up during a marriage usually accumulate to the point where one or both parties decide to call it quits. However, that decision entails a domino effect of other issues that may become the basis for losing any trace of amicability and escalating hostility that requires court intervention.

Among the areas where bitterness and rancor can add to the scurrilous environment in front of a judge include:

• Alimony
• Child Care payments
• Child Custody
• Visitation Rights
• Intentional misrepresentations to law enforcement and financial institutions to inflict damage on the aggrieved spouse

Refusing To Play The Victim

One woman who divorced her husband went through the gamut of traumatizing events triggering her estrangement, as well as all of the divorce settlement hurdles. She posted her story on Reddit to demonstrate how not to be a victim despite the odds, and emerged victorious with a bit of luck through bureaucratic inattentiveness.  

During her marriage…

• The poster’s husband forced her to leave her occupation in the medical field to focus on raising the children, to which she complied. 
• After their second child was born, the husband began having affairs and became both physically and emotionally very abusive.
• Physical abuse of the elder child was the last straw, and triggered filing for divorce. 

As they headed to divorce court…

• The now ex-husband tried to bankrupt the poster by refusing to pay for any child support, knowing she couldn’t afford daycare and that she had been out of the workforce too long to pick up her career from where she left off.
• He also lied to the poster’s banks to freeze her accounts to further starve her and the children into compliance. She filed for default when he refused to pay, prompting another physical assault on the poster.

Adjudications…

• The judge ordered 6 months’ back owed spousal and child support in addition to a new sum going forward to a total of 2 years. The ex-husband refused and his wages were subsequently garnished. The judge also allowed the poster to move away from the shared home with her two children.
• The poster saw that the ex-husband did not sign off on paperwork to end spousal support upon her remarriage, and that she had an option to file for a portion of his retirement funds. During the first year of support, she remarried, and retained the first year’s support amount and assumed that would be the end of the battle.
• The ex-husband discovered the poster’s remarriage, filed for sole custody of their children, and demanded a return of the spousal support money. She said it was fairer to him for her to keep the 1 year’s spousal support than to pursue his retirement account. 
• The judge ordered the overpayment of spousal support funds returned but increased child support, and they settled on extra visitation rights without changing her child custody.

Victory In the End…

• The poster pursued the retirement funds, something she would not have done were it not for his challenging her custody rights. The next 4 years were a constant battle. The ex-husband wound up receiving sanctions and added penalties. Ultimately, she received her portion of his 401-K, which quadrupled what her 1 year of spousal support was in total. 

Opposing Camp Impressions

The majority of respondents gave the poster props for her resilience and weighed in with comparable experiences.  One divorcee shared her tale, which involved a US Navy career sailor. 

• She agreed not to pursue his pension if he paid child support. 
• Instead, he tried to grab half of her 401-K, which contained a measly $500. 
• The judge cited a circuit court ruling that she was entitled to a percentage of his pension based on every year of their marriage (13).
• The sailor refused to pay when he retired, forcing her to garnish the retirement funds.. 

In the opposite camp, one man expressed skepticism. He inquired about why the poster didn’t pursue the 401-K from the start, why the judge recalculated child support when his visitation time increased, and why she kept collecting support after she was married if she was aware it was an overpayment. 

The poster explained that:

• The retirement account was reserved for judgment, leaving it available for her to file for it at her discretion.
• The child support recalculation was due to extracurriculars for the kids, equating to a net extra $20 per month.
• The judge admitted that leaving the box regarding termination of spousal support upon remarriage unchecked was a clerical oversight and not the poster’s fault. 

While divorce is never easy, undertaking it is a serious proposition, so strategizing for it should be conducted with the same meticulousness as portfolio management for one’s retirement or any other large financial impact situation.