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« What are the Rights of a Biological Father if the Mother is Married to Another Man? | Main | What Happens to Life Insurance Proceeds When an Ex-Spouse Forgets to Change the Beneficiary? »


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In my Judgment of divorce, it stated that I was to receive 50% of the ex's 401k from the date of marriage to the date of divorce. Almost 2 years after the divorce, i discovered that i did not receive the 50% because the day before the divorce was filed, my ex took out a loan against the 401k and never told anyone. When the 401k was divided since there was no mention of the loan, it was considered "silent" Can I now go after him for this loan amount.

Jeanne M Hannah

A court rule, MCR 2.612 allows amendment of judgment in certain situations. That rule says:

(C) Grounds for Relief From Judgment.
(1) On motion and on just terms, the court may relieve a party or the legal representative of a party from a final judgment, order, or proceeding on the following grounds:
(a) Mistake, inadvertence, surprise, or excusable neglect.
(b) Newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under MCR 2.611(B).
(c) Fraud (intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party.
(d) The judgment is void.
(e) The judgment has been satisfied, released, or discharged; a prior judgment on which it is based has been reversed or otherwise vacated; or it is no longer equitable that the judgment should have prospective application.
(f) Any other reason justifying relief from the operation of the judgment.

(b) and (c) might apply to your case, but the court rule and law require you to file your motion within one year after entry of judgment in those instances. Therefore, the only portion of this rule that applies is sub-paragraph (f).

It seems to me that this is a case in which the court would grant equitable relief and make your husband responsible for any loans against the 401k that he created. This is especially true where, as here, he obviously did it right before entry of judgment depriving you of the opportunity to know and readily discover his devious conduct.

Talk to your divorce lawyer. He or she can help you file a post-judgment motion to remedy this situation. While there is no guarantee, this sure looks like a case that warrants the court's relief. Best of luck to you! Jeanne

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