asset division

[luap11]

What is the name of your state? CA

My wife and I have been separated since October and I moved out in December. She wants the divorce. She has yet to file papers and I am thinking of filing myself. She is self employed and says she absolutely has to have the home which is in both our names and if I fight her we'll have to go to court. I do not care who has home, I just want my share of the equity, or is it best to sell the home? She also said that she wants half of my pension and deferred compensation plans. Do I have to agree to give it to her? How can I not give it to her? She chose not to create her own retirement plan even though I begged her to do so for years. Can I ask for a portion of her business? Should I? if so what would I be asking for? She thinks that it is fair for her to have 50% of both retirement plans, the home (I have to rent of course).


Also, what does it mean when I file? Do I need to have an attorney at that time?

Thanks

[Bali Hai]

Originally Posted by luap11

What is the name of your state? CA

My wife and I have been separated since October and I moved out in December. She wants the divorce. She has yet to file papers and I am thinking of filing myself. She is self employed and says she absolutely has to have the home which is in both our names and if I fight her we'll have to go to court. I do not care who has home, I just want my share of the equity, or is it best to sell the home?

You are entitled to 50% of the equity that accrued during the marriage. If she can re-finance in her name only and pay over your equity, that would be fine. If not the court will order the house sold and the proceeds divided equally after the mortgage is paid.

She also said that she wants half of my pension and deferred compensation plans.

She is entitled to that.

Do I have to agree to give it to her? How can I not give it to her?

The court will order a QDRO and she gets 50% of your pension. There is nothing you can do about that.

She chose not to create her own retirement plan even though I begged her to do so for years.

Do you see how it works now??

Can I ask for a portion of her business? Should I? if so what would I be asking for?

Certainly you can! 50% of the marital business seems equitible. There may be enough there so that you can keep your all of your pension.

She thinks that it is fair for her to have 50% of both retirement plans, the home (I have to rent of course).

She's right on the retirement. She'll have to buy you out on the home.


Also, what does it mean when I file? Do I need to have an attorney at that time?

Thanks

Yes you do need a good divorce attorney.

[LdiJ]

Originally Posted by luap11

What is the name of your state? CA

My wife and I have been separated since October and I moved out in December. She wants the divorce. She has yet to file papers and I am thinking of filing myself. She is self employed and says she absolutely has to have the home which is in both our names and if I fight her we'll have to go to court. I do not care who has home, I just want my share of the equity, or is it best to sell the home? She also said that she wants half of my pension and deferred compensation plans. Do I have to agree to give it to her? How can I not give it to her? She chose not to create her own retirement plan even though I begged her to do so for years. Can I ask for a portion of her business? Should I? if so what would I be asking for? She thinks that it is fair for her to have 50% of both retirement plans, the home (I have to rent of course).


Also, what does it mean when I file? Do I need to have an attorney at that time?

Thanks

You are in a community property state. That means that 1/2 of the value of the assets that accrued during the marriage (and that includes the retirement accounts) and 1/2 of the debts, belong to each spouse. There is no way around that.

However, depending on the relative values of the retirement accounts and the house and other assets and debts, its possible that you might be able to keep your retirement accounts intact, by giving up other assets in exchange...or keeping more debt in exchange.

If the house still has a mortgage, and/or she needs to buy out your share of the equity, she will have to be able to finance a mortgage in her name only. If she can't qualify for that, then it would be best if the home was sold.

It would really be wisest to have an attorney. However it will save you a great deal of money in the long run if you simply accept that you are each entitled to/responsible for 1/2 of the assets/debts that accrued during the marriage.

[Bali Hai]

Originally Posted by LdiJ

You are in a community property state. That means that 1/2 of the value of the assets that accrued during the marriage (and that includes the retirement accounts) and 1/2 of the debts, belong to each spouse. There is no way around that.

However, depending on the relative values of the retirement accounts and the house and other assets and debts, its possible that you might be able to keep your retirement accounts intact, by giving up other assets in exchange...or keeping more debt in exchange.

If the house still has a mortgage, and/or she needs to buy out your share of the equity, she will have to be able to finance a mortgage in her name only. If she can't qualify for that, then it would be best if the home was sold.

It would really be wisest to have an attorney. However it will save you a great deal of money in the long run if you simply accept that you are each entitled to/responsible for 1/2 of the assets/debts that accrued during the marriage.

Including the marital business.

[luap11]

Thank you for your response. Can I determine how she receives the pension or is it court ordered? Meaning, if she owes me 70K in equity from the home, 50% of my retirement to her (both pension and deferrred comp) equal to 60K, does that mean I would only get the difference of 10K less court fees? Does it work that way-all assets are addressed at once? Or if I want more of the equity out now can I choose to pay her the pension when she retires? Who determines this?

[luap11]

One last thing-when does all this have to happen?

When I file, how long before our case is heard and when are these decisions to be made? Do we have to wait until a court order before we refinance the home in her name? I want my name off the title asap because I fear her ability to pay and damage to my credit rating. Is there a way to speed up the process and force her to re-finance sooner?

I hiope you understand all this. during times like your going through its toug to get it all. As for your retirement.Whats important is,how long were you married .If you were married after you were hired,then the only portion that would be considered marital is from date of marriage ,until filing of divorce.The fifty percent is based only for that period. The qdro is the process that figures that out.Forgot whaT IT STANDS FOR BUT YOU CAN DO A SEARCH TO BETTER UNDERSTAND. Sorry caps.The same goes for the business .Was the business built during the marriage,if so its 50/50/ If it was prior,then the equity that has gained during the marriage is the portion that is marital.Assuming you bought the home together during marriage its a 50/50 split of the equity.If you agree to allow her to keep the home,you need to get your equity from the home by having her refinance in her name only. More importantly,you need your name off the mort. because if it is kept on,your still responsible for the mort. keeping your name on the mort. will make your credit score lower and harder for you to get loans and mort. in the future.In my situation ,we agreed to have a mediation hearing,at that time our lawyers were present and we negotiated an agreement signed later by the court. You can look over youe assets and debts and nego..Its common one party may conceed their portion of a retirement for total interest in an asset like the home. You need to know the actual value of the retirement at todays dollars/.If you were at the job say for 5 yrs, there is probably little value

[LdiJ]

Originally Posted by luap11

Thank you for your response. Can I determine how she receives the pension or is it court ordered? Meaning, if she owes me 70K in equity from the home, 50% of my retirement to her (both pension and deferrred comp) equal to 60K, does that mean I would only get the difference of 10K less court fees? Does it work that way-all assets are addressed at once? Or if I want more of the equity out now can I choose to pay her the pension when she retires? Who determines this?

Either the two of you must agree how the property is to be divided, or a judge will decide. No one can predict exactly what a judge would decide. The end result would still be 50/50 however.

If the two of you can agree you can structure things any way that you like. However, yes, in theory what you describe in the first part is one reasonable way to do it.

No, if she gets part of the pension she gets it immediately. You don't get the option to pay it out to her when you retire. Yes, all assets (and debts) are addressed at once.

Another poster has mentioned her business, twice. You need to realize that unless her business has an actual value (ie, its reasonable that someone would be willing to buy the business for a specific amount of money) there may be nothing to divide there. If her business is just basically her job....then its not really any different than your job.

[Bali Hai]

Originally Posted by LdiJ

Either the two of you must agree how the property is to be divided, or a judge will decide. No one can predict exactly what a judge would decide. The end result would still be 50/50 however.

If the two of you can agree you can structure things any way that you like. However, yes, in theory what you describe in the first part is one reasonable way to do it.

No, if she gets part of the pension she gets it immediately. You don't get the option to pay it out to her when you retire. Yes, all assets (and debts) are addressed at once.

Another poster has mentioned her business, twice. You need to realize that unless her business has an actual value (ie, its reasonable that someone would be willing to buy the business for a specific amount of money) there may be nothing to divide there. If her business is just basically her job....then its not really any different than your job.

That depends on how the pension is setup. If it's a 401k for instance, she would get that portion she was entitled split out in her name. However, she is under the same exact rules as he as far as how the plan is administered. If it's self-directed, she can move the money from fund to fund within the plan.

If it is a government pension plan, she may not have any control and may only get benefits when he starts receiving them.

[Bali Hai]

Originally Posted by fireboat1

I hiope you understand all this. during times like your going through its toug to get it all. As for your retirement.Whats important is,how long were you married .If you were married after you were hired,then the only portion that would be considered marital is from date of marriage ,until filing of divorce.The fifty percent is based only for that period. The qdro is the process that figures that out.Forgot whaT IT STANDS FOR BUT YOU CAN DO A SEARCH TO BETTER UNDERSTAND. Sorry caps.The same goes for the business .Was the business built during the marriage,if so its 50/50/ If it was prior,then the equity that has gained during the marriage is the portion that is marital.Assuming you bought the home together during marriage its a 50/50 split of the equity.If you agree to allow her to keep the home,you need to get your equity from the home by having her refinance in her name only. More importantly,you need your name off the mort. because if it is kept on,your still responsible for the mort. keeping your name on the mort. will make your credit score lower and harder for you to get loans and mort. in the future.In my situation ,we agreed to have a mediation hearing,at that time our lawyers were present and we negotiated an agreement signed later by the court. You can look over youe assets and debts and nego..Its common one party may conceed their portion of a retirement for total interest in an asset like the home. You need to know the actual value of the retirement at todays dollars/.If you were at the job say for 5 yrs, there is probably little value

The QDRO (qualified domestic relations order) doesn't figure anything out. Once the judge or both parties decide on the pension split, the receiving parties attorney usually is ordered to prepare the QDRO. OP and his attorney must make certain that the QDRO is correct. If not there is a chance that her attorney will try to pull a fast one and the judge will simply sign it. After the judge signs the QDRO it's all over but the crying.