I would like to ask how to answer to the complaint. There is a loan I took out from my 401k and I gave it to my husband for the home. It was a residential loan from my 401k. My husband moves out without notice and I’m stuck with the loan. Do I have right to have this money back since he’s in the home and I was not included? And how do I go about making this known to the courts that I desire this money back? Thank you.
The loan is likely marital debt assuming it was acquired during the marriage and for the joint benefit of the spouses. Therefore, you would have a claim for equitable distribution, which is the division of marital property and marital debt.
If you were served with a complaint for absolute divorce, then you would need to file a counterclaim for equitable distribution (exactly like a complaint for equitable distribution except that you are filing it in response to a complaint). Otherwise, the court will have no authority to handle this issue with just a complaint for absolute divorce.
It is important to note that once the absolute divorce is granted, you will no longer be able to file a claim for equitable distribution and ask the courts to divide the marital property and debts. As long as you have the claim filed and pending at the time the absolute divorce is granted, then the courts can divide the assets and debt.
Anna Ayscue
Attorney with Rosen Law Firm Cary • Chapel Hill • Durham • Raleigh • Wake Forest
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