Walking A Fine Line

Long story short. Separated 11/17. Children and I left marital home taking only furniture, clothes, toys and whatever we needed to live. Mediation 12/2 yielded kids staying with me, him having visitation every other weekend, Thursday dinner night and splitting breaks and intercessions and remainder of ED, etc. to be worked out within 30 days or it goes to court. He agreed to NC guideline child support (which I won’t see until they iron out the EXACT number of overnights, which won’t be ironed out until most likely we get to court which won’t be until Jan or Feb). Meanwhile he refuses to give me any money for anything.

He is taking the girls on a trip to Pennsylvania for four days to visit his mother the last week in December and has informed me that “he needs the car for the trip to PA”. The car he has is one I purchased prior to marriage (not good shape to go to PA). The one I have is one I took when I left, marital property but was purchased with the idea that it was used mainly because we needed to have something safe for the girls and because I was the primary caregiver, it was “my car” though it is in his name because when it was purchased, he was working and I only had a home business. To get the better rate, they said it was better to go in his name … however, still marital property.

Now he says “i need the car to go to PA”. What right does he have to take the ONLY car I have when he can rent one? He claims he has “no money”. He had $60k in a 401K until he pulled most of it out so that I won’t get any of it in ED so yes, he has money. He can rent a car. He hasn’t said a word about the car except to tell me to get it inspected so he can get it registered (still haven’t seen an updated registration).

So … do I have to give him the car for this trip? In my eyes, I shouldn’t have to. Why inconvenience me because he doesn’t want to spend money to rent a car for a trip that HE planned?

Here’s my non-lawyer take…

The car you have is marital property, and if you give it to him to take the girls to PA, good luck getting it back. There is a saying that “Possession is 9/10 of the law…”, and it’s pretty true. Although a judge may end up ordering that you get it, it will be some time until that could happen, and as long as he has it in his possession, and it’s marital property, no police officer is going to make him give it back to you…it’s civil, and they won’t get involved. So, my advice is to NOT give him the car, even temporarily, because I don’t think you’ll get it back.

Any money that he has in his 401K is marital (that which was gained/earned while you were married), and if he pulled it all out after you moved out, you are still entitled to 1/2 of the marital amount, regardless if he pulled it out or not…if he pulled it out prior to you leaving, then it might get sticky, and it would have to be proven (I think…) that it was not used for marital purposes (ie, he went out and spent it on drugs, gambling, paramour, etc…).

Just my take, keep in mind, I didn’t go to law school…

Needtoleave … thank you. Trust me, I have no plans on letting him have the car. I just wanted to be sure I wasn’t doing anything that could COST me KEEPING the car.

The money in the 401k was removed while we were still under the same roof. Part of it was taken to restore his MGB to a sellable condition, which he has done but has NOT sold yet. A good bit of it was used to pay HIS divorce attorney.

He can take the car as it has not been distributed as part of ED, but he cannot take it if you do not give him access, and your doing so is not against the law. I fear he would not return the car when he gets back, and you could end up waiting months before a judge could hear the matter.

You are still entitle to half of his retirement money that was saved during the marriage.

Ok, that part I do get. I guess what I’m fuzzy on is what AMOUNT do they consider for equitable distribution? I mean, he was served with Divorce from Bed And Board papers back in March I think but I didn’t move out until 11/17. During that span of time, he removed a GREAT deal of money from his 401K and there’s hardly any left in there now. So do they use the amount from the date of separation or can they force him to give me half of what was in there when he was served with the papers even though we were still under the same roof?

Normally the date of valuation of assets is the date of physical separation, however any money that was removed in preparation for separation, and for a non-martial purpose, as appears to be the case here, is included in the valuation. So in your case, you should be entitled to half of what was in the before he made large withdrawals.