If a largely pre-marital 401K is rolled into an existing IRA during the marriage (money rolled over, not securities), and then securities are purchased with this money, is it considered active trading during the marriage and is therefore marital?
The IRA that you describe will be part separate property and party marital property.
If the rollover premarital funds can be traced and distinguished from the marital funds earned during the marriage, then the premarital funds will not be considered in equitable distribution. However, this may be tricky, or impossible, to determine if passive gains on the account are earned on the premarital funds or the marital funds, especially if marital funds were continued to be added to the account.
If the premarital funds and passive gains/losses on the premarital funds cannot be distinguished and it is impossible to trace, then the whole account would likely be considered marital property as it existed on the date of separation.
Anna Ayscue
Attorney with Rosen Law Firm Cary • Chapel Hill • Durham • Raleigh • Wake Forest
Rosen Online | Unlimited confidential access to a North Carolina attorney for $199/mo - click here
The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service only, a full discussion with an attorney should be undertaken before taking any action. The information posted on this forum is available for public viewing and is not intended to create an attorney client relationship with any individual. These answers are provided for informational purposes only, a person should consult with their own individual legal counsel before taking any action that could affect their legal rights or obligations.