Equitable distrib - 12 factors how does it work?


Dear Marlee:

Greetings. First, remember that the 12 factors don’t “determine” the equitable distribution, but they affect whether or not the equitable distribution is equal.

Now, to the questions:

  1. Yes, he is entitled to half of the marital portion of your retirement, but only the marital portion. I think your clear goal to retain your retirement is a negotiating factor, but I doubt the factors you mentioned in this question will make his ability to get 1/2 your retirement any less.

  2. No, this argument is not pursuasive. You are talking about court, which should not be your goal. If you and your spouse agrees on this, it should not be an issue. This is a moral issue, one of fairness between spouses.

  3. What you have described is not wasting marital assets. Wasting generally involves the issues you have described - gambling, drinking, drugs.

It sounds to me like you have a feeling that the negotiations with your spouse are not going well or that you will lose out. The settlement does not have to be unfair. My suggestion is that you hire a caring attorney to help you negotiate for what you need. Best of luck.

Janet L. Fritts
Attorney with Rosen Divorce
4101 Lake Boone Trail, Suite 500
Raleigh, North Carolina 27607
919.787.6668 main phone
919.256.1665 direct fax

10925 David Taylor Drive, Suite 100
Charlotte, North Carolina 28262
704.644.2831 main voice
704.307.4595 main fax


The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service but a full discussion with an attorney should be undertaken before taking any action.


Hi Janet. From reading on the laws on this site (very helpful!) I see there are around 12 factors that determine equitable distribution. In going through this, the ones that may affect me are: Support obligations for prior marriage; The length of the marriage and age and health of the parties; Direct contributions to increased value of separate property; Actions taken by either party to preserve or waste marital assets; and Other factors. Here are my questions:

  1. I am 6 yrs older than he is (40 yrs old). He makes a few thousand more than me salary wise and we both contribute to our 401Ks through work. My retirement contributions are higher and I’ve earned more due to vesting. In 3 yrs of marriage, is he entitled to half of this or does the court view this as a short marriage so he may not be entitled to half of the difference? I am also 6 yrs closer to retirement - does that help me in any way since he is younger and makes more $ than I do? Doesn’t seem fair that I’ve saved more for retirement when I make less.
  2. He pays child support and has visitation rights only. I’ve heard child support cannot be “factored” into equitable distrib. He has paid 30K over 3 yrs and that hasn’t been used to contribute toward marital assets. He doesn’t save much and spends more than I do. I have aging parents (86 and 77 yrs old) that I have helped support financially, even if they are not dependents legally (yet). I have told my ex since the beginning of our marriage that the $$ I have saved in my separate savings account is to support them should one of them pass on. I have record of sending them $$ for an A/C for their house and other expenses. Can this be a valid argument that the court will consider so I can keep my savings acct to support my parents? Were talking an amount under $5K here. I have a form of “support” for my aging parents even if it’s not mandated by a court.
  3. what does it mean by ‘wasting’ marital assets exactly? anything I’ve read has to do with gambling, drinking, and drugs. He spends more than I do and claims “he doesn’t know where his money goes” and I have a tendency to save more.

thanks Janet - you have been wonderful to answer all our questions.