In almost every case, you cannot cash out your 401K or other retirement type assets before your divorce is final. In New York, once a divorce case is filed, neither party can withdraw (or cash out) any monies from a 401K, IRA or any other type of pension/retirement account.
The only exception to this rule, would be: (1) if the Court gave you an explicit order allowing you to do this; or (2) if both parties agree, in writing, to allow you to do this.
By the way, this rule applies whether or not you believe the 401K is “your” money or that it existed before the marriage. The rule is a blanket rule and does not make any exceptions as to whether or not the 401K is considered a marital asset or is your separate asset.
If your money is tied up in a 401K or pension/retirement asset and you want access to it, you should consult with your attorney on how you may be able to cash it out or to borrow from it.
If you have a 401K, IRA, pension or retirement asset and you are considering getting a divorce, then contact David Badanes, Esq. and the Badanes Law Office, P.C. David Badanes provides real-world advice and has helped countless clients in their divorce and can help you as well.
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