I had a question recently emailed to me that would be a good blog post, and it dealt with a man who wanted to know if his ex spouse could get any of his pension and 401k, when they had been divorced 9 years.

Without all the facts, it is not a straightforward answer, but if the pension and 401k were acquired during marriage and before separation, then yes an ex spouse may have a claim. It depends on what the Judgment from 9 years ago says. If the Judgment either awards the retirement to him, or divides it between the parties, then whatever the Judgment says is binding on both parties.

If, however, the Judgment does not specifically mention the 401k or pension, or what happens to the retirement accounts of the parties, then it is called an Omitted Asset, and the Court, under Family Code 2556, retains jurisdiction to divide an omitted asset even years after a divorce is done. I had a case recently where the parties were divorced 28 years, and the issue of division of the husband’s pension came up and the Court made a ruling dividing .

There a few exceptions on when a Court may decide not to divide an asset that was left out of the Judgment, but they are very specific to the facts of a case. The important thing to remember is to always include everything in your Judgment, otherwise you leave open the risk that you will end up in Court again later over a disputed asset that was omitted. Otherwise, talk to a post judgment modification lawyer to discuss your case.