I'm trying to figure out if a particular paragraph (or portion of it) in my divorce decree is severable.
This is in the state of Pennsylvania.
I'll excerpt the portion of the decree in question. Explain the circumstance, and then show the severability clause.
[i]"Within thirty (30) days of the execution of this Agreement, Husband shall withdraw from his 401K plan the sum of Seventeen Thousand Dollars ($17,000) and immediately upon withdrawal pay to Wife the sum of Eight Thousand Five Hundred Dollars ($8,500). Husband shall be solely liable for all costs, penalties, and tax witholdings which result from the withdrawal and Husband shall utilize the balance of the payment as full satisfaction of any obligation Wife may have to Husband for Husband's personal debt incurred during the marriage, including but not limited to those obligations set forth in this Marital Property Settlement Agreement."
Her lawyer drafted this. She thought I could just take cash out on my own. I wasn't sure if I could or not, but she wanted to fast track the divorce. As it turns out, federal and state law doesn't allow me to withdraw the funds directly out of my account at my age. She would need to have QDRO drafted and entered into court. Even then, she can only go for $13,500 of available funds, convert it to a 401K in her name, then withdraw the cash on her own because she wants the money now. That makes her liable for the taxes and penalties.
I'm guessing because I cannot do what's defined in the agreement, because the law prevents it, I can have this portion severed under the following severability clause:
[i]"This Agreement shall be construed in accordance with the laws of the Commonwealth of Pennsylvania. In the event that any provision or clause of this Agreement conflicts with applicable law, such conflict shall not affect the other provisions of this Agreement which can be given effect without the conflicting provision. To this end, the Agreement is declared to be severable."
Thank you for any advice you may have on this.