Q: In state of nc I am separated for 17 months now. Can I only get half of assets before date of separation?
Can I fight for half of everything to the date we file separation agreement? Specifically everything in our joint bank account and current amount in my spouses 401k.
I have not worked in 16 years am not currently working and would like half of 401k currently not 17 months ago
A:
Decent bit to unpack here.
You used the term "separation agreement," but also mentioned that you would "file" this document. A separation agreement is a contract between spouses, and typically isn't filed with the court. As it is a contract, the parties can agree to any terms they see fit, whether those terms are close to what you would get in court or not.
You should only be entitled to half of the marital estate as of the date of separation, and in 401(k), this would include your gains/losses on the amount of the 401(k) you are receiving from the date of separation to the date of distribution. But you of course wouldn't be entitled to any new funds that he put in the 401(k) after y'all split.
Of course you should half the marital estate, so you have to determine the size/scope of the marital estate and what makes sense to divide it. Sometimes folks don't end up dividing the retirement accounts if there are other assets (for example, spouse A could get the house, and spouse B could keep their retirement).
This answer is probably not sufficient and you will likely need to consult with a local family law attorney.
David Allan King agrees with this answer
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