Marital vs. Separate property after one year


The law presumes that contributions of separate property to the marital residence are presumed to be a gift to the marriage, so your wife is entitled to half of the equity in the home. Your payment of her debt will also be considered a gift to the marriage.
With respect to your 401(k) your spouse is entitled to one half of what you saved during the marriage. The decrease in market value during the marriage will be taken into account.
Given the duration of the marriage and the large amount of separate property you invested in the marital estate, you can, and should argue that you should receive more than the typical 50% share of the martial estate. Equitable distribution is presumed to be equitable when the property is split evenly, however in cases like this, it would only seem fair an equitable that you receive back more than half based on the fact that you alone seem to have contributed 100% to the marital estate.

Erin E. Clarey
Attorney with Rosen Law Firm

Raleigh Office
4101 Lake Boone Trail, Suite 500
Raleigh, North Carolina 27607
919.787.6668 main phone
919.787.6361 main fax

Charlotte Office
301 McCullough Drive
Suite 510
Charlotte, NC 28262
Main Phone: (704)307.4600
Main Fax: (704) 943.0044

Sutton Station
5826 Fayetteville Rd. Suite 205
Durham, NC 27713
Phone: (919) 321-0780


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 only, a full discussion with an attorney should be undertaken before taking any action. The information posted on this forum is available for public viewing and is not intended to create an attorney client relationship with any individual. These answers are provided for informational purposes only, a person should consult with their own individual legal counsel before taking any action that could affect their legal rights or obligations.


My spouse and I have just decided to separate. We got married last Jan. 25, so it has been a little less than a year. She had a lot of debt and no savings, I had a lot of savings and no debt when we got married.

We bought a house in both of our names just after we married, and I paid the $100,000 down payment out of my savings. I also gave her about $12,000 out of my savings to pay off most of her credit card debt.

During the year of marriage I contributed the maximum possible (about $25,500) to my 401k, but the overall value of my 401k went down over $100,000 despite the contributions.

My question is: Is she entitled to half the equity in the house even though it came from my separate funds, and is she also entitled to half the 401k contributions, even though the account value has decreased significantly? If so, am I entitled to decrease that by the amount I contributed to pay off her credit card debt?