ED Question


When we separated, we went through mediation and as a part of that we gathered the balances of all our accounts. The mediator worked with us to define how assets would be distributed based on the balances on the date of separation. We never signed the agreement. Now, 7.5 months later, stbx says he wants to modify the agreement to include the current balances (my 401k is worth more than his and has therefore grown more than his over this time period) so that the amount I owe him is more than what it would have been then.

I told him that the gains/losses are not marital assets after the time of separation and he says they are marital assets until we are legally divorced. Who is correct?


Passive gains and losses (market forces) are divisible as part of the marital estate, however active gains (contributions) and losses (withdrawals) are not divisible and are considered separate property.


That makes sense. How do you go about figuring out what market force gains/losses occurred on the original amount and not on the contributions I’ve made? Do you have to have a forensic accountant do that?


It normally does not take a forensic accountant, many times parties can agree simply to view the growth as the increase since DOS less contributions since DOS.