Answer to Service / Counterclaim for Equitable Distribution

I’ve just received the Absolute Divorce packet from by wife and am currently preparing the response documentation when I ran into a question…

We previously had a separation agreement which outlined the required Equitable Distribution of our properties, however she has not fully complied with all of the requirements within that agreement by failing relinquish funds from her 401k.

Would it be appropriate to file a counterclaim on the grounds of ED or is this something that should be approached outside the scope of these proceedings and in small claims instead? I would assume this issue would need to be brought before the court before a ruling should be made.

Thanks for all your assistance!

If your equitable distribution settlement terms are in a fully executed separation agreement, then you do not need to file a claim for equitable distribution as that issue is settled.

However, you should file a counterclaim for the equitable distribution of retirement accounts (or a counterclaim for entry of a QDRO).

In order to get your wife’s 401(k) funds transferred to you as your separation agreement calls for, you will need a QDRO (qualified domestic relations order). This is a very specific court order that directs the plan administrator to transfer the retirement assets to you. In order to get this entered, you will need a claim, but it is not a full equitable distribution claim as that issue is resolved.

Anna Ayscue

Attorney with Rosen Law Firm Cary • Chapel Hill • Durham • Raleigh • Wake Forest

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