I signed a prenup on the way to the baton rouge airport to get married in Vegas. I was pregnant and katrina had just hit. My husband did not disclose his assets and neither did I. However, it was signed by a notary and 2 witnesses so it’s legit. I have resigned myself to the stupid decision I made and am trying to get on with life. My ex is a multi-millionaire and the prenup was worded so that I get nothing from the marriage. We were married 11 years and have a 10 yr old son. Recently a friend told me about a federal law (IRC § 417(a)(2) that supposedly overrides state law when it comes to 401ks and prenups:
“A special rule applies to 401(k) plans and other “qualified plans” governed by federal law: Your spouse is entitled to inherit all the money in the account unless he or she signs a written waiver, consenting to your choice of another beneficiary. It’s not enough just to name someone else on the beneficiary form that your employer gives you.
If your spouse agrees to sign the waiver, which should be provided by the firm that administers the 401(k) plan, a plan representative or a notary public must act as a witness. A prenuptial agreement can’t take the place of a waiver; the law says the spouse (not soon-to-be-spouse) must sign. A spouse who does sign a waiver can withdraw that consent if the other spouse later names a different beneficiary, unless the signing spouse expressly gave up that right. (IRC § 417(a)(2)”
I sent this to my attorney but have yet to hear back. I hope she doesn’t think I’m questioning her knowledge of the law….I just want to leave no stone unturned. I’m 53 and have been a stay-at-home mom for 20 years. I helped raise my ex’s kids, as well as my own and our son together. I’m finding it extremely difficult to find a job, especially one with a living wage.
Thanks to anyone who has any advice.
We deleted the duplicate post in the General Law Forum to avoid confusion and duplicate replies.
An important part of the statute you quote is “the law says the spouse (not soon-to-be-spouse) must sign.”
We cannot try to substitute or second guess what your lawyer is doing and what advice she may have. It could possibly boil down to what beneficiary or beneficiaries he had on his 401(k) prior to your marriage and whether he made any changes to beneficiary designations after your marriage.
It is true that in many cases retirement plans that are controlled by ERISA (Employee Retirement Income Security Act of 1974) control rather than state law. So, under ERISA, the normal rules under Louisiana law about the division of assets between spouses in a property settlement would be overridden by federal law. For example, if a couple entered into a property settlement, even if confirmed in a judgment signed by a Louisiana judge, it would not necessarily be binding unless ERISA rules were followed. That is where you get into the realm of QDROs or Qualified Domestic Relations Orders that control how property must be divided and require that the plan administrator first approve the division prior to the issuance of an order. Many divorced spouses in Louisiana find out for the first time when the spouse retires that their property settlement rendered years before is not valid -simply because the employer is not bound by the settlement unless ERISA rules are followed.
Anyway… you can see that this is a vastly complicated area that depends on a particular fact situation.
I was under the impression that the three areas the pre-nup cannot cover in Louisiana include child support, child custody, and a spouse’s right to receive alimony (or how much). Is that not the case?
It can’t cover child support/custody but it can address alimony. At least that’s my understanding.