What can I expect?

[mauraoc123]

My husband and I are Virginia residents, in our early 50s, married 12 years, with an 11 year old child. He retired recently, and things are unraveling.

We have both aways worked, he retired with a traditional pension plus signifigant savings in a 401K. He made 60 - 85K while working, I make 45K.

If we did divorce, what could I expect in terms of support, childcare or part of his pension/401K? The pension and 401K benefits accrued over 31 years; we've been married for 12.

I'm not expecting to the penny answers, just general guidelines, something to figure out what kind of lifestyle we could each expect on our own.

 

[mistoffolees]

My husband and I are Virginia residents, in our early 50s, married 12 years, with an 11 year old child. He retired recently, and things are unraveling.

We have both aways worked, he retired with a traditional pension plus signifigant savings in a 401K. He made 60 - 85K while working, I make 45K.

If we did divorce, what could I expect in terms of support, childcare or part of his pension/401K? The pension and 401K benefits accrued over 31 years; we've been married for 12.

I'm not expecting to the penny answers, just general guidelines, something to figure out what kind of lifestyle we could each expect on our own.

General guidelines:

Property division (including pension). You will be entitled to 1/2 of the marital value of all assets. For the pension, that calculation is very complicated because there was substantial value before you got married and that value has probably grown at the same time as he accrued more. You will need to get a QDRO (qualified domestic relations order) to have the pension split so that you get your share. Same thing with the 401K. You will want an attorney who is well versed in pension matters - or else you'll need a separate accountant who can help figure out the amounts.

Child support is easy. Look up your state guidelines online and you will be able to find a calculator. Plug in his income (including retirement income), your income, and the amount of time the child spends with you and it will give you an estimate.

Alimony is more of a crapshoot. The guidelines are not as rigid as they are for child support in most states. In general, the court will look at the difference between your income and his and attempt to equalize it for some period of time (probably 2-4 years for a 12 year marriage). HOWEVER, since he's not working, you'll need to find out the rules in your state - YOU may end up paying alimony to him.

Frankly, without knowing what is in your 401K, I can't be certain, but I suspect he's not going to be able to stay retired long. He loses your income. He'll be paying child support. He'll lose part of his own pension and part of his 401K. Unless his 401K is humongous or he's willing live VERY frugally, it's not likely to work out for long. But that's only a guess.

 

[mauraoc123]

Thanks very much, that's a good start.

He's part owner of a family farm that is *not* marital property; I would imagine he would build something there and try to stay retired.

The next logical question for me would be how hard would it be for me to hang on to our current home? It was purchased 4 years ago, with comingled assets. We both owned homes in our own names before we married, then we merged households, and some years later, bought the home we're in now.

It's a double edged sword -- it has a small mortgage that I could handle on my own; but the mortgage is small because we both have lots of equity in the house.

How difficult would it be for me to hang on to the house/how easy for him to force the sale?

Thanks again for your time and help.

 

[mistoffolees]

Thanks very much, that's a good start.

He's part owner of a family farm that is *not* marital property; I would imagine he would build something there and try to stay retired.

The next logical question for me would be how hard would it be for me to hang on to our current home? It was purchased 4 years ago, with comingled assets. We both owned homes in our own names before we married, then we merged households, and some years later, bought the home we're in now.

It's a double edged sword -- it has a small mortgage that I could handle on my own; but the mortgage is small because we both have lots of equity in the house.

How difficult would it be for me to hang on to the house/how easy for him to force the sale?

Thanks again for your time and help.

Can you FORCE him to let you have the home? No.

Could it work out that way? Very possibly.

If neither of you wants the house, it will be sold. If one of you wants the house and the other one doesn't, then the situation is clear. If both of you want the house, the judge will have to decide who gets it - or order it sold.

Now, in the event that one of you gets to keep the house, you will need to take over the mortgage. Ideally, it should be refinanced in your name and a smart lawyer on the other side would require it, but it slips through a lot of times without being refinanced. That has more downside for him than for you. In addition, you will have to give him 1/2 the marital equity of the home. That is, the equity minus the debt. HOWEVER, this COULD be adjusted for different amounts of pre-marital equity you put in - if you have good enough records. So if the current equity is $100 K and you put in $20 K more than he did, you MIGHT only owe him $40 K rather than $50 K ($20 K separate equity from $100 K total equity leaves $80 K marital equity which is split). You could either pay him cash for his share or give him other assets in exchange - such as letting him keep more of his 401K to make up the difference.

Again, a smart attorney on his side would not allow you to offset $1 in home equity with $1 in 401K account - since the 401K money is pre-tax and not worth as much as the same amount of money in an after tax asset. But, again, many attorneys miss this.

 

[LdiJ]

Can you FORCE him to let you have the home? No.

Could it work out that way? Very possibly.

If neither of you wants the house, it will be sold. If one of you wants the house and the other one doesn't, then the situation is clear. If both of you want the house, the judge will have to decide who gets it - or order it sold.

Now, in the event that one of you gets to keep the house, you will need to take over the mortgage. Ideally, it should be refinanced in your name and a smart lawyer on the other side would require it, but it slips through a lot of times without being refinanced. That has more downside for him than for you. In addition, you will have to give him 1/2 the marital equity of the home. That is, the equity minus the debt. HOWEVER, this COULD be adjusted for different amounts of pre-marital equity you put in - if you have good enough records. So if the current equity is $100 K and you put in $20 K more than he did, you MIGHT only owe him $40 K rather than $50 K ($20 K separate equity from $100 K total equity leaves $80 K marital equity which is split). You could either pay him cash for his share or give him other assets in exchange - such as letting him keep more of his 401K to make up the difference.

Again, a smart attorney on his side would not allow you to offset $1 in home equity with $1 in 401K account - since the 401K money is pre-tax and not worth as much as the same amount of money in an after tax asset. But, again, many attorneys miss this.

I agree with this advice, although, it honestly might be wiser to simply sell the house and split the equity. Then you can decide whether or not to purchase something that you can afford more easily.

Although, since the mortgage is pretty low, he may feel that he won't need the credit room that the mortgage takes up, and he may agree to allow you to live in the house and pay the mortgage, until your child graduates from high school, and then you sell and split the equity then....which could benefit both of you since the market is so down right now.