My wife and I are divorcing, both our second marriage. During our marriage, my wife received a QDRO awarding her a 401k from her previous husband.
Is her 401k awarded from a previous marriage during our marriage subject to property division? Can I claim anything else in the QDRO which was signed by the judge during our marriage?
I do not practice law in your state. Therefore, I cannot inform you as to the specific laws of that state and can only provide you with general tips on divorce.
Where I practice (Missouri), if your wife brings an asset into the marriage, then that asset will generally remain her sole and separate property.
In your example, your wife obtained the 401k as an asset divided from a prior marriage. This is her asset and not an asset that you and she accumulated (or earned) as a product of your marriage together.
With that said, there are always exceptions to the rule. In your case, if your wife took that 401k money and put the funds into a joint account which you then contributed money to as well, then she technically “commingled” the money.
Some judges find that the mere act of combining the funds is enough to change the character of the separate asset to a marital asset.
On the other hand, other judges disagree and prefer that in addition to commingling, there should be evidence that you and your wife spent them as if they were marital (e.g,. buy a car, pay for vacations, etc.).
So, basically the answer to your question in a nutshell is that it really depends on what she did with the money once she received it as to whether the asset should be divided amongst the two of you.
Remember, I am unable to provide you with anything more than divorce tips for men, so please consult a domestic litigation attorney in your area to obtain specific advice as to the laws in your state and how they impact your potential case.