We have an ongoing court date that keeps getting pushed out for one reason or another. I keep presenting settlements as of DOS. Will a Judge make the decisions based on DOS or does he/she look at current financial standing? i.e. we have lived separate and apart for more than a year. In settlement proposals she wants my 401k based on current value and I keep saying no, only what is 50% as of DOS. I wonder what a Judge thinks and handles it. What is the law? Thank you.
There is no set rule for dividing some assets. For instance, a marital residence, may have passive and active increases and decreases to value post-DOS which need to be taken into consideration when valuing by the judge. A 401(k) is a little more precise. The marital portion of a 401(k) is the amount deposited during the marriage and before date of separation, and passive gains and losses on those amounts. The amounts deposited by you after DOS that are active increases to the value are not marital or divisible by the court.