Pittsboro, NC asked in Divorce for North Carolina

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

Related Topics:
1 Lawyer Answer
Mr. Albert Loch Saslow
Mr. Albert Loch Saslow
  • Greensboro, NC
  • Licensed in North Carolina

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

Justia Ask a Lawyer is a forum for consumers to get answers to basic legal questions. Any information sent through Justia Ask a Lawyer is not secure and is done so on a non-confidential basis only.

The use of this website to ask questions or receive answers does not create an attorney–client relationship between you and Justia, or between you and any attorney who receives your information or responds to your questions, nor is it intended to create such a relationship. Additionally, no responses on this forum constitute legal advice, which must be tailored to the specific circumstances of each case. You should not act upon information provided in Justia Ask a Lawyer without seeking professional counsel from an attorney admitted or authorized to practice in your jurisdiction. Justia assumes no responsibility to any person who relies on information contained on or received through this site and disclaims all liability in respect to such information.

Justia cannot guarantee that the information on this website (including any legal information provided by an attorney through this service) is accurate, complete, or up-to-date. While we intend to make every attempt to keep the information on this site current, the owners of and contributors to this site make no claims, promises or guarantees about the accuracy, completeness or adequacy of the information contained in or linked to from this site.