MY SPOUSE HAS BEEN VERY ABUSIVE FOR MANY YEARS. THIS PAST WEEKEND WE HAD A SERIOUS SITUATION IN WHICH THE POLICE HAD TO COME TO OUR HOME. I WANT TO LEAVE MY SPOUSE OF 20 YEARS BUT I NEED MY 401K TO LIVE OFF SINCE I MYSELF WILL BE RETIRING IN TWO YEARS.
MY QUESTION IS IF SPOUSE IS ABUSIVE CAN THAT WAIVE HIS RIGHTS TO 401.
ANOTHER QUESTION: WHAT WAIVES SPOUSE RIGHT TO 401.
According to the laws in North Carolina your spouse will be entitled to equitable distribution of the marital assets which includes retirement accounts. Normally the court considers a 50% distribution to each party to be equitable; however there are several factors that can be considered in order to award one spouse a greater than 50% share of the property. While abuse is not specifically listed as a factor in the statute, there is a “catch all” which allows the court to consider any other factor which the court finds to be just and proper.
Equitable distribution does not require that each asset be divided. It may be that other assets can be allocated to your spouse to allow you to keep your retirement account in tact.
Abuse is a factor which is considered in an action for alimony. If you are the dependent spouse your husband’s abusive actions, if proven, will be relevant to alimony claim. You should meet with an attorney immediately to discuss the specifics of your case. Based on the limited information you have provided you may have a case for a Domestic Violence Protective Order which you should seek immediately if you believe you are in imminent danger of bodily harm.
You may also be entitled to post-separation support and attorneys fees from your spouse.