PROBLEM:

You suspect that the debtor has been contributing money to a 401(k) retirement account for years, and he doesn’t intend to share the funds with you.

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SOLUTION:

Unlike with pensions, married people are generally not legally required to inform their spouse when they choose to participate in a retirement plan through their private employer.  Even though you may not be involved in your spouse’s 401(k) choices, it’s important for you to be aware of the value of this frequently substantial marital asset.

Although the IRS only permits a person to contribute a limited amount to his 401(k) each year, $17,500 in 2013, these amounts really add up over a lifetime.  Not to mention, his employer may have been matching his contributions.

Fortunately, if your debtor has a 401(k), there should be a fairly lengthy paper trail.  If you have access to his pay stubs, check there first.  They will show any deductions for contributions made to a 401(k) or similar retirement account offered through the debtor’s employer.

If your debtor doesn’t hang on to paystubs, take a look at his taxes.  Because 401(k) contributions are made with pre-tax dollars, they won’t be deducted from your debtor’s income on his form 1040.  However, the W-2 completed by your debtor’s employer will have these contributions listed in box 12.

If you can’t get your hands on paystubs or W-2s, try calling your debtor’s employer and speaking to someone in the human resources department.  Your debtor’s co-worker would probably be happy to answer some benefits questions for you.  At the very least, you should be able to learn whether the employer automatically enrolls its employees in their 401(k) program, at what contribution rate, and whether and to what degree the employer matches its employees’ contributions.  This will put you in a good position to understand if and how much your spouse contributes to his 401(k), and whether or not it may eventually be worth subpoenaing records of the account from his employer.

You should keep in mind that your debtor may also contribute to retirement plans that are not offered through his employer.  Depending on the type of account, you may find these contributions on your debtor’s tax returns.  For example, if your debtor contributes to a traditional IRA, he probably deducts his contributions from his income on his 1040.  If your debtor receives any distributions from his retirement accounts in any given year, his 1040 should reflect the amount and his tax return should also include 1099-R forms completed by the financial institutions that made the distributions.  The 1099-R will also give you a better idea of where your debtor’s retirement funds are invested.

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