IRA, ED and stolen goods


#1

We are divorced but there has been NO property settlement nor has there been any hearing whatsoever for ED. (Her attorney has dragged this out for over 2 years).

After I filed for divorce, based on my attorney’s recommendation, because we still lived in the same house, I removed all bank records and notified my wife I had done so, and told her she could have copies of anything she wanted. I stored them in a fireproof safe, in the locked basement of a friend’s home. She knew where they were.
Shortly after that, but well before the Date of Separation, as an investment, I took out $50,000 from my IRA, bought gold with it and put it in the same locked fireproof safe, in the basement of the friend’s house.
The IRA was derived from a pension plan and I know that in ED my wife can claim 50% of the value of the IRA as of DOS.

Two months later the house was broken into, the gold was stolen and never recovered.

I thought it was my loss because both the withdrawal and the theft occurred before the date of separation.
On my ED Inventory I reported the amount of my IRA as of the date of separation. I did NOT report the stolen amount, only the net amount of the IRA that was left in the IRA after my withdrawal (and as of DOS).
Questions: 1) Was I correct NOT to report that the $50,000 loss had been a part of my IRA (again, before DOS)?
2) Is that $50,000 taken into account in ANY manner in the ED process?

Finally, the fact is, while I was out of town and unreachable, my wife lied and convinced my friend that she had a key and that I had said she could retrieve some documents from the basement, so he did not stop her from entering the basement through an outside door.  Out of his sight, she used a bump key to pick the basement lock to get into the basement and then she picked the lock on the fireproof safe and took all financial records AND the gold.  
She has admitted taking records but denies taking gold.  Police were called and report filed but nothing was ever done to her relative to the stolen gold.
Question #3 - Since she was involved as described above, does that affect your answers to questions 1 & 2 above?

Question #4 - Should her actions be brought up in an ED hearing?
My attorney says this situation is so unusual that he does not have answers to those questions,
Please help


#2

Your wife would have been entitled to half of the value of the gold as well - equitable distribution considers all assets and debts. The $50,000 was subject to division regardless of whether it was in an IRA or some other form. So yes, that $50,000 should be considered in the ED process. The fact that she may have had a hand in the missing gold should absolutely be addressed at an ED hearing. There are a list of distributional factors that a judge can consider before issuing an order on ED, that would allow for an unequal distribution of the assets. One of these factors is: “Acts of either party to maintain, preserve, develop, or expand; or to waste, neglect, devalue or convert the marital property or divisible property, or both, during the period after separation of the parties and before the time of distribution.” (See N.C. Gen Stat § 50-20©). If the judge determines she has liability with regard to that $50,000, he may use that as a basis to order an unequal division in your favor.


#3

Thanks for the reply. However, it appears you are making no distinction concerning “Acts of either party …” between those acts occurring BEFORE or AFTER separation. The Statute you quote refers ONLY to acts "…AFTER separation and before the time of distribution."
I bought the gold with funds from my IRA fully 10 months before the date of separation. She broke in and the gold went missing 9 months before separation.
I clearly did not attempt to hide or waste the funds since there is a clear and obvious paper trail of the funds coming out of my IRA and then a purchase receipt by an established gold broker showing the purchase of the gold, by me, in my name…
The ED Inventory calls for an itemization and valuation of property as of the date of separation.
The missing gold did not exist as of the date of separation.
Please comment


#4

If you are saying that the gold was stolen prior to the date of separation, and it was not in existence as of the date of separation then that value would not be included in your ED inventory. Think of it this way - if you (or your wife) withdrew $50,000 from the IRA prior to separation and gambled it away, or spent it on an extravagant trip, you wouldn’t include that amount of money in your E.D. affidavit.

That being said, the statute I referenced (N.C. Gen Stat § 50-20©) also allows the judge to consider “any other factor that which the court finds to be just and proper” in making a ruling for an unequal distribution of assets. If based on the testimony the judge believes she has liability with regard to this stolen gold, then the judge can use that as a basis to make an unequal distribution of assets (in your favor). Although it sounds like this might boil down your word against hers in court, unless you have compelling evidence that she in fact stole the gold.