Equitable distribution of house assets?


#1

Hello,

Under the statute regarding Equitable distribution (ie, re exceptions to the normal 50/50 split) it lists one of the exceptions as the “need of a custodial parent to occupy or own the marital residence for the benefit of the parties’ children.” My wife (we are recently separated) earns substantially more than me, but because she will be the sole/primary physical custodian, she believes that I owe her more than 50% (she wants 55%) of the equity in the house (she is buying me out), because she will be burdened with most of the child care and home responsibilities (I work out of state and can only come to visit my daughters for about a third of the year on average…) Is her argument valid at all, based on the statue? Thank you very much for your attention! (PS: Also, she wants to buy me out by reducing the amount of retirement assets I will give her. Are the house and retirement assets essentially apples and apples or (as some have said to me) the retirement may be worth less, because of tax issues? And finally, is it legitimate for me to ask her to give me some cash as part of the buy-out (to have a cushion for possible future $ hardship, if I lose my job, etc but need to keep making child support payments)?.. Thanks!


#2

First, let me suggest that you hire an attorney. This sounds like a complex ED case you want to make sure your interests are protected. That being said, you are correct that the need of the custodial parent to stay in the marital home is a reason a judge can order an unequal division. However, if you read NC Gen Stat § 50-20©, you will see the whole list of factors the judge can consider - the first of which is "the income, property, and liabilities of each party at the time the division of property is to become effective. You could argue that because her income is substantially more than yours, that offsets or negates the fact that she needs to stay in the home for the children.

I can’t really answer your question about splitting the retirement accounts without knowing more details. I would hire an attorney and have that person analyze all of the tax implications and advise you on how best to avoid any penalties.

Yes, it is reasonable to expect cash if she is buying you out of the house. If you are drafting a separation agreement you can address how the buyout should take place, and you can indicate that a specific portion is to be paid in cash by a certain date.