Separation Agreement Standstill

My wife and I are working through a separation agreement using local attorneys. Our situation should be relatively straight forward as we do not have a very complicated estate. However, my spouse does not seem open to any negotiation. She is proposing what on paper is a reasonable, equitable distribution of assets: Namely, I keep my retirement and she gets all of the equity in our home. She is also requesting 12 months to get me off the mortgage. Additionally, she feels entitled to spousal support payments that would cause me to go $1,000 in the hole each month taking into account my income, reasonable expenses, and child support payments (for 9 years - were have been married for 15).

Offsetting the equity in the house with my retirement looks fine on paper, but leaves me with little to no savings and no ability to borrow against my 401k because I would already be going in the hole each month after paying spousal and child support. Additionally, I would still be on the mortgage, which I consider to be an unacceptable risk. It only seems reasonable to me that we sell the house, split the proceeds and split my retirement.

If we end up in mediation or trial, is there any chance that she could actually be awarded a division like she is demanding? It seems crazy to me that I would be required to divide our assets this way when it would limit my ability to take proper care of our two children (we are splitting custody equally). I would be accumulating crazy debt each month while having no liquid assets.

I am willing to keep fighting, but if we end up at trial, I would hate to keep spending money on legal fees and such only to find that the judge is inclined to allow the property division she is requesting.

Any thoughts would be appreciated.

This kind of division would work only if the values in the equity in the home and the retirement account are equal while taking into account any other marital property and marital debt.

It would be more typical that the equity in the home is divided and retirement accounts are divided if they are unequal values.

Further, 12 months is a bit long to refinance the house but not uncommon. Typically we see 3-6 months but it depends on the income and employment history of the spouse that needs to refinance.

9 years of alimony from a 15 year marriage is a bit excessive as well. Without knowing any details, 5-8 years would be more reasonable.

Going to a mediation with a certified family financial mediator would be well worth your time and money. Mediation is almost always successful and is much cheaper than going to court.

Anna Ayscue

Attorney with Rosen Law Firm Cary • Chapel Hill • Durham • Raleigh • Wake Forest

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