Divorce and separation of assets

**Broken Arrow** · 05-25-2010, 10:48 AM

Short answer, you're going to want to consult with a divorce attorney. State laws vary widely on the subject of divorce.

In my state, any arrangement in asset splits will work so long as both parties are willing to agree to it. Did I mention that my ex tried to take everything, whereas I pushed for 50/50? I applaud you for being fair-minded.

However, if you don't have something written down, it won't stop him from going after your stuff at a later date. At the very least, I recommend to get the major assets down on a piece of paper, have both sign for it, and get it notarized. Did I mention that even when we both legally signed for our asset splits, my ex still went after me for money, stating that it was somehow expenses for the kids?

Unless your ex is extremely amicable or something, you're going to want it down on paper. Talk to a divorce attorney, and perhaps have them help you draft something up. It isn't cheap to do this, but it'll be a great peace of mind as you move forward.

**Radiance** · 05-25-2010, 10:51 AM

Thank you. I was just wandering if a judge would try to make it more fair.

He has more on 401k, but i have more on savings.
I dont know how much his motorcycle is but I have a car... things like that
I am sure I can get him to sign, well, I am almost sure.
I think the furniture is almost worthless due to depretiation...

**Broken Arrow** · 05-25-2010, 11:08 AM

If you are planning to take it to court, then I most definitely recommend talking to a divorce attorney. You're going to need their services in court, and anyway, they will be able to answer these questions for you much better than anyone here can.

However, a question you can ask yourself right now is this: "Are the contested items worth the cost in legal fees?" Is whatever you feel is unfairly split ultimately going to be worth the cost of hiring a lawyer, who could cost you in the thousands? If not, I would probably lean towards letting it go.

As for getting him to sign, if he has half a brain, he will sign it because it also protects his stuff from you into the future. So, both parties benefit from this arrangement.

**tulog** · 05-26-2010, 08:36 AM

The 'date of permanent separation' is the date you and your husband no longer lived together, and is the date at which the state calculates how many assets and debts you have, and divides them. All assets received and most debts incurred after permanent separation are the separate property or responsibility of the spouse incurring them.

You should lay a claim to the $9000 401k funds and other funds. Those funds existed at the date of permanent separation. You deserve 1/2 of these monies. Also, you want to see a sworn Financial Affidavit from your husband, where he states under penalty of perjury what funds he owned; this will be a starting point in determining what other assets he may have. You can also submit to him a Request to Produce Documents" (this is a written demand that he produce a copy of listed documents with 30 days). You can depose him, or send him interrogatories. You can also use other tools to determine his assets.

Your $5000 savings was built after the date of permanent separation. This money is not part of the marital assets, it is yours alone, and you do not need to declare it. You can declare furniture and personal affects of a reasonable value, say $100. You can declare a reasonable value for a 3-yr old laptop, say $50. A used TV, $150-200.

Any debt that you owed on the Honda Civic at the date of permanent separation is a marital debt, and should have been split 50/50. You could recover 1/2 of the monies you paid on a joint marital debt while paying off your car.

You may benefit from a lawyer, but you could also do it yourself as the forms are not that difficult to fill out. If the matter heads to trial, you can subpoena records of the 401k account, and other records. You may need to get a QDRO on the 401k, if he cannot pay 1/2 the cash amount. This orders the plan administrator to pay according to the order at the appropriate time.

How long was the marriage? One of the other issues before the court besides property is spousal support.

**bjl584** · 05-26-2010, 09:14 AM

Let the attorneys battle it out. If they can come to terms on both sides and are in agreement that the assets be split as they already are, then there is a 99% chance that the Judge will agree to those terms. However, if you go into court without an attorney or without an agreement, then the Judge may lay down any judgement that he sees fit, whether or not you agree with it. I wouldn't chance it. By the way, that 401K is half yours. The spouse is automatically listed as the beneficiary of a 401K. The only way to not be listed as your husbands beneficiary is for you to sign a document that explicitly says that you are opting out of being the beneficiary of his 401K, and that he is allowed to name a different party as the beneficiary. I'm assuming that you didn't do that being that you didn't know about the existance of the 401K. Let your attorney look into that for you.

**Radiance** · 05-26-2010, 12:21 PM

We are doing legally binding agreeemnt prior to filing

GOOOD POINT on 401k. When do I benefit? I guess when I retire?
And how does that work? If he continue accumulating after divorce that part should be his.,,, hmmm
If he cashes out now to split, we loose a lot of money in fines for early withdraw...

**Broken Arrow** · 05-26-2010, 12:27 PM

Originally posted by Radiance View Post

If he cashes out now to split, we loose a lot of money in fines for early withdraw...

This is interesting.

Q: Can I avoid an early-withdrawal penalty if I cash out part of my share of a 401k that I receive during divorce proceedings?

A: Yes. When the 401k is divided, you, as the alternate payee, have a one-time opportunity to take out 401k money without paying the normal 10% income tax penalty for withdrawing before age 59�. However, it is likely that you would have to pay income tax on any distribution.

But I would still consult a divorce attorney for all this.

**tulog** · 05-26-2010, 01:47 PM

Originally posted by Radiance View Post

We are doing legally binding agreeemnt prior to filing

GOOOD POINT on 401k. When do I benefit? I guess when I retire?
And how does that work? If he continue accumulating after divorce that part should be his.,,, hmmm
If he cashes out now to split, we loose a lot of money in fines for early withdraw...

You benefit now either now, or later through a QDRO (if the funds stay in the 401k). A QDRO specifies:

The name and last known mailing address of the participant and each alternate payee

The name of each plan to which the order applies

The dollar amount or percentage (or the method of determining the amount or percentage) of the benefit to be paid to the alternate payee

The number of payments or time period to which the order applies

Reference: ERISA � 206(d)(3)(C)(i)-(iv); IRC � 414(p)(2)(A)-(D)
From the US Department of Labor.

**tulog** · 05-26-2010, 01:56 PM

The judge will most likely accept without comment any mutually agreed upon contract for property division you present.

However, your contract for division of property does still not address other issues such as spousal support, which are in the court's jurisdiction. But if you want to ignore those issues until court, you can certainly do so.

**Scanner** · 05-26-2010, 04:32 PM

I agree with your decision to go in pro se. . .at the stated amounts, not much is on the table, unless there is a lot of liabilities or something or spousal support or child support (which is actually state determined anyway).

Don't let the attorneys fight it out. . .it will cost $3500 to basically bicker over $4500 it sounds like.

It sounds like you are maybe getting the short end of stick (yes, you are entitled to $4500) but maybe you aren't when you figure all the household furniture is yours. Maybe the split is "reasonable."

**Radiance** · 05-27-2010, 11:59 AM

yeah, im not going after his 401k, not worth it.
We can decline spousal, and we are both declining. I am not entitled anyway. He states he is declining his.

Child support is set by state and cannot be declined.
I get $20.40 from him, but I am paying full daycare at $630.
I am ok with that, I have been paying that alone since baby boy was born.

The main difference is that since March 25th my son is staying with daddy 3 nights a week because he wants joint custody.

Still we need to fill out financial affidavits, a royal pain.

**Scanner** · 05-28-2010, 11:45 AM

Radiance,

Yeah, the whole joint custody thing is a real controversey. You may be surprised that as a parent, I am not seeking 50/50 joint physical custody. With my work schedule, it's too much and I really don't agree with the "King Solomon" approach splitting of kids between homes.

Their home is their home. Not to say one can't or shouldn't create an "escape" for them, but I never got the King Solomon thing, although, although, if it works for some divorcees, then I definitely don't judge. Any workable agreement is better than a disputed agreement.

I just see what I call a "fad" in the divorce industry (and it is an industry) and I am uncomfortable with it.

The kids become "pawns" in some sort of way of reducing the non-custodial parents child support obligation so they seek 50/50 when sometimes they aren't able to be a good parent to them in a different environment.

I don't think I would have liked shuffling back and forth as a kid if I was in a divorce. I could see me starting to say, "I don't want to go with Dad this Tues. and Thurs. . .I got this or that going on." and what parent wants to make their second home a makeshift "jail" to serve "Dad-time?"

I want my kids to be with me, not always have to be with me (sometimes they "have" to go).

Well, we are in the middle of fighting over all of this so this subject is timely for me.

**TrunkMonkey** · 06-05-2010, 01:03 PM

Originally posted by Radiance View Post

yeah, im not going after his 401k, not worth it.
We can decline spousal, and we are both declining. I am not entitled anyway. He states he is declining his.

Child support is set by state and cannot be declined.
I get $20.40 from him, but I am paying full daycare at $630.
I am ok with that, I have been paying that alone since baby boy was born.

The main difference is that since March 25th my son is staying with daddy 3 nights a week because he wants joint custody.

Still we need to fill out financial affidavits, a royal pain.

What do you mean you get 20.40 from him. Is this per day?

Also what was the net worth of you before the divorce - 5000 + 9000? + car + moped

Divorce and separation of assets