We have been married for 17 years. I was a stay-at-home parent for 14 of those years. My husband had money in his retirement before we married and continued to contribute. He withdrew $350,000 during the marriage, and he contributed $172,000. He is claiming that i should not get anything. His reasoning is that we should both take one half of the hit for the $350,000 withdrawal ($175,000) and, since $175,000 is more than half of my portion of the $200,000 contributed during the marriage, I get nothing. He is using the last-in/last-out rule. I think the first-in/first-out rule would apply instead, because there is no equity associated with the $350,000. Do you know what NC courts typically do in a situation like this? I am so nervous because I only have the retirement from my current job and I am 55 now.
You will likely be entitled to one-half of the value of the retirement account as of the date of separation.
To prove his separate property portion from before the marriage, he will have to produce a date of marriage statement, which is unlikely that he would be able to do. Therefore, the whole value of the retirement account will be treated as marital because he will be unable to prove his separate property value.
Further, he will be unable to prove that his separate property portion remain untouched when he withdrew funds, also making the whole account marital.
Anna Ayscue
Attorney with Rosen Law Firm Cary • Chapel Hill • Durham • Raleigh • Wake Forest
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