This is my first post here. I stumbled across this forum while searching for information on the topic. I am not from North Carolina but I’m hoping someone knowledgeable will be able to help.
Here’s the situation: been married 20 years. Lots of unhappiness the last few years and husband has threatened divorce several times. Obviously I’m not feeling secure in the marriage. He took a new job a year ago and we were both advised at that time by our financial planner that it would be best to roll 401k funds over to a more secure plan since he no longer is employed there.
So now he’s moving ahead with that. And I have to sign an authorization. My concern is that the money is going into a traditional IRA. I’m not savvy on this stuff but from what I’ve read, IRA’s allow the owner to change beneficiary anytime and they aren’t necessarily split 50/50 in event of divorce. He met with the financial planner without me to discuss specifics so I have a hunch he is trying to hide something.
I’ve heard 401k is a “qualified” fund and IRA’s are not but I don’t really know what that means. By the way, we are not from a community property state. Does moving the money into a traditional IRA put me at risk in event of divorce? Thanks
For a resident in North Carolina, it would not matter whether retirement funds are in a 401(k), IRA, or some other investment account. As long as the funds were acquired/earned during the marriage, then they would be subject to being divided equitably during an equitable distribution case.
However, I am not licensed in any other state but North Carolina and therefore, I cannot give you legal advice on this issue in the state that you live.
Anna Ayscue
Attorney with Rosen Law Firm Cary • Chapel Hill • Durham • Raleigh • Wake Forest
Rosen Online | Unlimited confidential access to a North Carolina attorney for $199/mo - click here
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.
Anna Thank you for all you do here. I listed his retirement accounts in my ED forms and filed them along with other things he bought during the marriage that I want half the value of. His retirement grew 60k during the marriage. How do I actually get that disbursed to me?
Thank you!
Once it is determined how much of your husband’s retirement account that you are to receive (either a specific dollar amount or a percentage plus any passive gains), then you will need to have a QDRO (qualified domestic relations order) filed. The QDRO is a court order that instructs the retirement account’s plan administrator to transfer to you tax-free the specified portion of the retirement account.
Anna Ayscue
Attorney with Rosen Law Firm Cary • Chapel Hill • Durham • Raleigh • Wake Forest
Rosen Online | Unlimited confidential access to a North Carolina attorney for $199/mo - click here
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.
How do I get the amount I should receive determined? who makes that decision? and how long does it take?
Thank you
Money owed to you in equitable distribution will be determined by agreement or ordered by a judge. The amount is determined by valuing each marital asset and debt, distributing those values to either Husband or Wife depending on who is keeping a particular asset or debt, and then calculating the amount it would take to equalize the distribution.
Anna Ayscue
Attorney with Rosen Law Firm Cary • Chapel Hill • Durham • Raleigh • Wake Forest
Rosen Online | Unlimited confidential access to a North Carolina attorney for $199/mo - click here
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.
I need to know specifically how to get my share of the growth of the 401 K during the years we were married. How do I get the amount determined and how do I get the process started? I thought it was 50 % of the growth during the years of marriage in NC—that it is a law and I dont need a judge to order it–that i am entitled to half and just need to present papers to have it disbursed. Can you please tell me do I need a lawyer to do this paperwork. I have the statements from the 401 K and want to start on it now. It grew 60000.00 during our marriage. I have filed ED papers. My divorce will be final in 4 days and I need to know what to do. If I need a lawyer then who can I contact in your firm to handle this for me?
Thank you in advance for your help.
Generally you are entitled to one-half of the marital value of a retirement account plus or minus any passive gains or losses. The marital value is the difference between the value at the date of separation and the date of marriage.
To get your share of the retirement account, you must first have an equitable distribution settlement, either done by a separation agreement or by a court order. Then, based on the terms of the separation agreement or court order, a lawyer would need to draft a QDRO (qualified domestic relations order). This is a court order that directs the plan administrator for the retirement account to distribute the specified funds to you.
It is very important to note that once your absolute divorce is granted, you can no longer file an equitable distribution claim with the court. And in order to have a QDRO entered, you must have an equitable distribution claim filed and pending at the time of the absolute divorce.
You can schedule an appointment with one of our lawyers by calling our main office number at (919) 787-6668.
Anna Ayscue
Attorney with Rosen Law Firm Cary • Chapel Hill • Durham • Raleigh • Wake Forest
Rosen Online | Unlimited confidential access to a North Carolina attorney for $199/mo - click here
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.