When is Equitable - Equitable?


#1

I have been going back and forth with my ex, her lawyer and my lawyer and I am confused.

Based on my simple understanding of the law, there is a concept called separate property. I worked for a small portion of time whereby my employer and I contributed to both my defined benefits and 401k plans. My understanding is the part of this that occurred during pre-marriage is separate and NOT subject to ED, right?

Next, my ex left and I have maintained the “marital” home for the last 2.5 years. As such I have paid about 20k in principal and about 10k in interest along with all insurance on the home since then. As I read it, the NCGS states that I should at a minimum be credited with at least all of the principal paid and this should therefore be separate property and not subject to distribution, right?

I have been arguing back and forth with my attorney telling her that in light of the above, my ED formula should be:

(All assets - 401k and pension premarriage - principal and half of insurance paid on house)/2. This would leave the principal and pre-marriage contributions exclusive to me… My attorney still wants to come back to 50-50 and ignore the premarriage and post marriage payments I made.

Do judges typically just want to recognize this as a 50/50 deal only or do they take into account the separate items I delineated?
Next, I understand that 401k and pension money aren’t the same as dollars that haven’t been taxed. What multiplier is good to apply to evaluate them equally?

Thanks again! This forum is great!!!


#2

I am not an attorney. Your arguments make sense, but I would have to look up the exact NCGS as it relates to your second paragraph.

Paragraph 1 sounds reasonable to me from what I know. Assets acquired before marriage are your property, but any increase in assets during the marriage would be split 50/60. 401K, house etc. Say your house you had before the marriage was worth $100K. During the marriage it increased in value to $150K. You would have to split the $50K (or buy her out).

I would assume that if you paid on the mortgage 100% since separation then you would be entitled to 50% compensation on those post separation payments.

If you are arguing with your own attorney then that is a red flag. You and your attorney need to be on the same sheet of music.

This is what I understand about judges. I have only been in front of one for mediation.

They are busy. They don’t get creative. Given a case without clear law to backup an unequal split they will divide it 50/50.

Hope this helps.


#3

Any retirement contributions (and employer matches) and the growth thereon is separate property and not subject to distribution. The party claiming property is separate has the burden of proof to show what amount is separate property.
You are only entitled to seek one half of the principal reduction from the date of separation to the date the property issues are settled.
As for a multiplier on retirement, I usually discount those values by 30%, in cases where the parties lump all the property together. The proper way to account for retirement is to do an entirely separate comparison from the rest of the marital estate, equalizing the retirement separate and apart from the remainder of the estate.