PRE-post separation questions


#1

My plan is to use the Rosen Online because I want to be involved and do most of the work myself.

I am a dependent spouse married 20 years with 1 minor child in the home. I have homeschooled the children the last 15 years. During the 15 years I have not worked outside the home, but operated a homebusiness. My 2012 self-employed earnings was $10K and husband’s wages $60K. My plan is to separate from my husband then assess the relationship in 1-year. I will be the one moving out of the home because husband is close to work. Matter of fact, our rental lease will go into month-to-month soon, so we both can move into smaller affordable spaces. Our minor child will live with me and we will not be more than 1-2 hours drive from husband so that husband and eldest children can maintain their present relationships.

I know husband will not agree to a separation. I know he will not agree to share the assets, which I will need a lump sum to be able to move and I will need monthly financial living assistance so that I can continue to home educate our minor child. I’m concerned that if I serve a summons on him to appear before a judge, because he will not agree to separate nor make available our assets, he will move assets around without my knowledge. We have 401k (which he proudly told me that it is his money because he worked for it), stock and other paper assets, most are joint accounts but some are not. All were created during marriage except for small 401K percentage prior to marriage which has accumulated. We have “0” debt.

Q1. What can I do to secure a lump sum prior to separating?

Q2. How can I keep husband from selling off stock, moving them around or from making major purchases during this process?

Thank you…


#2

Not an attorney

Your husband doesn’t need to agree to separate…Once you or he moves out of the residence with intent to live apart and maintain a separate domicile, that starts the clock on separation. The separation agreement document, is simply a document to protect each other’s finances during this time of separation and to outline important issues such as child custody, child support (although CS can be done in a separate order), alimony, post separation support, division of property, etc. However, you do not need a Sep Agreement to Separate or even divorce, although it is often highly recommended, especially if the two of you own property.

As for post-separation support, you’ll need to file a motion for this with the courts, and the court/judge will review the circumstances, your income, his income, your needs, his needs and if the two of you can’t agree on a monthly stipend, the judge will enter an order for one if appropriate. As I understand it, it’s pretty much the same process for determining alimony.

To your question on disposing of assets, it’s important that you get copies of as many account statements, previous tax returns and other supporting documents showing the status of all assets/debts at time of separation. These values are essentially frozen at time of separation in regards to property distribution, so if he starts to dispose of assets or hides money, it really does no good, as you are still entitled to 50% of the marital assets/debts at time of separation. Plus, if your property distribution comes before the court because the two of you cannot agree, then any egregious acts by him to hide money or dispose of money would not be looked upon favorably by the court.

Lastly, you won’t be able to enforce a lump sum payment unless the two of you agree to this in a SA. You can however, take 50% of what you deem as marital assets from accounts you have access to. Just be prepared to justify this if your distribution goes before the courts, as the money you take now is part of a final disposition of property division.


#3

You can’t unilaterally decide on a custody arrangement. Your husband has equal rights to the children as you do. If you both can’t come to an agreement amongst yourselves for custody then it will have to go through the courts. 1 -2 hours seems REALLY far away depending on your custody schedule.


#4

The only way to get a lump sum without agreement or a court order is to remove the money from a bank account.

To get a court order that he is not allowed to touch stock or his 401(k) requires filing a motion for a temporary restraining order.


#5

[quote=“wcom”]Not an attorney

Your husband doesn’t need to agree to separate…Once you or he moves out of the residence with intent to live apart and maintain a separate domicile, that starts the clock on separation.[/quote]
Okay…that I have read and am aware.

I get what the separation agreement does, but according to my husband…I don’t have any finances since I have not worked outside the home the better part of the marriage. I would need to have a judge determine how/when assets would be divided. I can simply state in the agreement what I need for living expenses while separated…because I do not know the end results, I would record in the separation agreement what I would ask for in a divorce settlement.

I was hoping that I could request a lump sum in the separation agreement and monthly living expenses at the same time. If not, I would not be able to move out.

If you are correct on this, since you stated that you are not an attorney, I have a question for you; If you are not an attorney are you replying from experience? To continue, if you are correct on the above the court/judge could award the funds that I would need to move out immediately…correct? In addition, you listed that there will be a review of our circumstances, is this only financial related? Out of respect for my husband, I do not care to have recorded, in the public, the details of our marriage. Let’s say the judge enters an order for monthly stipend for each of us, will that take effect immediately?

How are these values “frozen” at the time of separation? Will the financial brokers, etc be notified of a court order?

Okay…I know he’d rather just divorce before he has to cash in or any of his stocks. If that is the case, then I will simply prepare two SAs; 1- with a small lump sum amount and monthly living expenses should he agree to separation for 1 year with the remaining percentage to be distributed at the end if divorce occurs; 2-if he doesn’t want to agree to this and just do not care any more, then I’ll have the 2nd SA ready which will divide all financial accounts 50%, including retirement, at the time of separation and nothing owed in 1-year and move forward with divorce.

Thank you for your time and your feedback.


#6

Okay…now that’s scary…I mean I not afraid he’ll get physical or anything…but removing money out of his accounts I just couldn’t imagine what it would be like around our household. My husband watches his money…on a daily basis. When he’s not working…all his time is spent watching financial news, financial newsletter, organizations, foreign investments, etc. I could withdraw .50cents and he’ll know. Though I have access to funds from his weekly pay it wouldn’t be enough to move out of the house. Also, I’m not sure where all the accounts are or if I’ll be able to withdraw/transfer without his approval on joint accounts let alone accounts not in my name. Even if I were to withdraw, we would still need monthly living expenses…if I go and withdraw without his knowledge that will just make everything even worse.

Would I be able to file one Motion that contains language for both the post separation support and a temporary restraining order? Or must they be two separate motions, but can be filed at the same time? Filing both together would be important because if I filed a motion to be heard for post separation support and not have a temporary restraining order against him touching stock, 401k, etc, then that is exactly what he’ll do.

Thank you, Kathleen for your feedback.


#7

If you look through the articles on Rosen.com, they highly recommend you get your hands on as many bank statements, 401k statements, logins, even just what banks they’re using… If he cleans out the accounts, but you at least know about them then they can still award you your fair share of the asset.


#8

EndoftheLine - I agree, first Rosen.com has a wealth of information of its site and I very much appreciate the buffet of info. Also, I have begun to log into the accounts that I’m familiar with and/or is accessible and am printing out the account summaries. As far as the 401k accounts, it would not be so easy to simply withdraw or transfer funds because it appears you must sell shares of stock first…not sure of what the timeline is if I did that. I’m sure I won’t be able to do so and transfer in another account in 24 hours…I must do more due diligence on how to go about getting a lump sum awarded rather than pull the funds from behind his back…doesn’t feel right to me. I want to give him a chance to agree and if not, then the judge can decide…its best for everyone. Because he sees it has “his money”, he’ll see it as stealing. Yes, I know its’ technically “our shared funds”, but that won’t matter…if he sees it as “stealing from him” then we’ll be off - - again - - to a bad start.

Thank you…EndoftheLine for your assessment and if your user name reflects your current condition, then I hope it shall become “BeginingofNewPath”.


#9

Regarding the 401k. If you withdraw anything you’ll get stuck with a penalties/taxes. You’ll have to wait until a QDRO is established, which is basically a legal mechanism for separating retirement funds without a penalty.

I think trying to approach the separation of funds amicably is a good start to things, but don’t let him drag you around, and look out for yourself. If you tell him about your plans/proposal and give him too much time, he might just clean out the accounts himself. If you’re concrete in your stance to divorce, then rightfully half is yours, and you need to look out for #1.


#10

In answers to your questions:

‘Frozen’ - No, not frozen in a legal sense that the assets are held without access…Frozen in the sense that the value of those assets at separation are what will be used for the basis of property distribution…Let’s say you have 100K at time of separation and you have a bank statement showing this. If he cleans out the account, shows up to court later and says there are 0$ in that asset, you still get $50K, because that’s half the value at time of separation.

‘Been through this’ - Yes, but from the other side. My ex-w had an affair…Even though that bars her from any alimony claim, I still provide post-separation support so that she can maintain her household where she has custody of my children. Post separation is a different action than alimony, but it provides somewhat the same benefit, only it’s a stop gap measure during the period of separation before the final divorce. We, however, did this amicably on our own that did not involve a court order.

‘Review’ - The depth of the circumstances reviewed by the court to award post-separation support will be based mainly on financial. I don’t believe that much weight is place on this portion of negotiations on personal issues within the marriage. That would come more into child custody issues. However, I have not personally been through a hearing of this nature, so I can only speculate based on the cumulative reading I’ve done here and other sites.