How does equitable distribution work?

[DecisionTime]

What is the name of your state (only U.S. law)? Oregon

Oregon is an equitable distribution state and the statute says there is a rebuttable presumption that the parties contributed equally to marital assets. What factors would need to be addressed to rebut that? Marriage was eight years, there is one minor child. Husband has hardly worked, wife has been the wage earner. Husband has been sporadically employed, sporadically attending classes, sporadically seeking employment. Husband was not primary caretaker of child.

Assets/liabilities are about $50K in home equity, $20K in 401K, $5K in cash and $20K in debt. No real premarital assets to speak of. I am able to make payments on the house and want to keep it. I'd be prepared to sign over the 401K completely but don't want to get stuck with all the debt as well.

Would the fact that I have been the income earner and husband has not been contributing financially or as homemaker enough to skew distribution away from 50:50? What does "equitable" mean in this sort of property division?What is the name of your state (only U.S. law)?

 

[LdiJ]

What is the name of your state (only U.S. law)? Oregon

Oregon is an equitable distribution state and the statute says there is a rebuttable presumption that the parties contributed equally to marital assets. What factors would need to be addressed to rebut that? Marriage was eight years, there is one minor child. Husband has hardly worked, wife has been the wage earner. Husband has been sporadically employed, sporadically attending classes, sporadically seeking employment. Husband was not primary caretaker of child.

Assets/liabilities are about $50K in home equity, $20K in 401K, $5K in cash and $20K in debt. No real premarital assets to speak of. I am able to make payments on the house and want to keep it. I'd be prepared to sign over the 401K completely but don't want to get stuck with all the debt as well.

Would the fact that I have been the income earner and husband has not been contributing financially or as homemaker enough to skew distribution away from 50:50? What does "equitable" mean in this sort of property division?What is the name of your state (only U.S. law)?

Possibly...no one can say for certain. Don't expect to do better than about a 35/65 split.

However, even though you don't want to get stuck with all the debt, I would strongly recommend that you DO stick yourself with it. The reason I say that is because its not very likely that your husband will pay it even if he is ordered to pay it, and the creditors are not a party to your divorce and are bound only by the credit agreements. Therefore, you need to be the one responsible for the debt, in order to protect your credit.

You are also going to need to refinance the home to take his name off of the mortgage, and that may complicate things a bit as well. A good strategy could be for you to keep your 401k in exchange for keeping the debt..since they are equal, and then you give him half of the cash in the bank, and half of the home equity upon a refinance.

If you do not feel that you can refinance, then it would be better to sell the house and buy something smaller and more affordable.

 

[DecisionTime]

Thank you - that makes a lot of sense. Two follow up questions if you don't mind?

Of the $20K in debt, $10K is in my name alone, $5K in his name alone, $5K jointly. I know creditors aren't a party to divorce, but if I was never a party to the contract with the creditor and never used that card can I be on the hook for his $5K? I realize I need to protect my credit, but do I also have to watch out for his?

Secondly, on the refinance question, I looked into it a while ago and can't do a cash-out refi as the LTV ratio would be too high. I was planning to look into assumption of the loan - all the qualifying income and credit was mine. (I realize this is entirely up to the bank.) Would a settlement be able to provide a window of time to refinance so hopefully the LTV position could improve? If so can the division amount be a fixed figure at settlement or must it be based on appraisal at refi?

 

[LdiJ]

Thank you - that makes a lot of sense. Two follow up questions if you don't mind?

Of the $20K in debt, $10K is in my name alone, $5K in his name alone, $5K jointly. I know creditors aren't a party to divorce, but if I was never a party to the contract with the creditor and never used that card can I be on the hook for his $5K? I realize I need to protect my credit, but do I also have to watch out for his?

No, if its in his name then he is the only one responsible for it. You would only be responsible for the 10k in your name and the 5k in both names.

Secondly, on the refinance question, I looked into it a while ago and can't do a cash-out refi as the LTV ratio would be too high. I was planning to look into assumption of the loan - all the qualifying income and credit was mine. (I realize this is entirely up to the bank.) Would a settlement be able to provide a window of time to refinance so hopefully the LTV position could improve? If so can the division amount be a fixed figure at settlement or must it be based on appraisal at refi?

If he AGREES to a later payment of a fixed amount, then the judge will sign off on that agreement. If he doesn't agree...then the judge will likely order you to sell the house and split the proceeds.

Most likely he is going to want his money up front...and honestly, you would probably be better of giving it to him up front.

Get a current appraisal done now to make sure that you are accurate on the value of the home...and then start negotiating. Get a consult with a local attorney to get an idea of the climate of the courts to see if they ever entertain a less than 50/50 split. I am not suggesting that you need to jump into hiring one, but you should at least consult one.

 

[Bali Hai]

No, if its in his name then he is the only one responsible for it. You would only be responsible for the 10k in your name and the 5k in both names.



If he AGREES to a later payment of a fixed amount, then the judge will sign off on that agreement. If he doesn't agree...then the judge will likely order you to sell the house and split the proceeds.

Most likely he is going to want his money up front...and honestly, you would probably be better of giving it to him up front.

Get a current appraisal done now to make sure that you are accurate on the value of the home...and then start negotiating. Get a consult with a local attorney to get an idea of the climate of the courts to see if they ever entertain a less than 50/50 split. I am not suggesting that you need to jump into hiring one, but you should at least consult one.

You failed to mention the very real possibility of this OP's alimony obligation.

Based on what has been provided by this OP, she is looking at paying alimony for at least 4 years should the husband demand it. It doesn't matter that her husband is a lazy bum. Lazy bum wives get alimony all the time.

AND, the equitable distrubition just may be 35/65, in HIS favor!!

The law is gender neutral!!

 

[mistoffolees]

You failed to mention the very real possibility of this OP's alimony obligation.

Based on what has been provided by this OP, she is looking at paying alimony for at least 4 years should the husband demand it. It doesn't matter that her husband is a lazy bum. Lazy bum wives get alimony all the time.

AND, the equitable distrubition just may be 35/65, in HIS favor!!

The law is gender neutral!!

"at least" 4 years - on an 8 year marriage. Not likely. California, maybe, but not OR.

 

[Ohiogal]

"at least" 4 years - on an 8 year marriage. Not likely. California, maybe, but not OR.

I will agree that she could possibly be on the hook for alimony depending on her earnings. Most likely she will be paying some spousal support for anywhere from 1/3 to 1/2 the length of the marriage.

 

[DecisionTime]

Ugh, spousal support. I was afraid of that. I earn about $90K. I know the judge doesn't care, but man it sucks that because I was responsible and hard working I'm going to get stuck with supporting him a while yet.

I was hoping that if I covered all daycare and other child costs and waived child support for a few years until he gets on his feet that I could leave alimony out of it. But I suppose from a tax position spousal support is better for me than just paying all childcare expenses post tax.

Ugh, ugh, ugh. Just sucks all round, really.

 

[DecisionTime]

One more thought - does it affect the possible alimony situation if he sponsored me as an immigrant to the U.S. just prior to the marriage (i.e. less than 10 years ago)?

 

[Bali Hai]

Ugh, spousal support. I was afraid of that. I earn about $90K. I know the judge doesn't care, but man it sucks that because I was responsible and hard working I'm going to get stuck with supporting him a while yet.

I was hoping that if I covered all daycare and other child costs and waived child support for a few years until he gets on his feet that I could leave alimony out of it. But I suppose from a tax position spousal support is better for me than just paying all childcare expenses post tax.

Ugh, ugh, ugh. Just sucks all round, really.

Welcome to the world of equal rights my dear. We need more of you paying alimony.

 

[Bali Hai]

One more thought - does it affect the possible alimony situation if he sponsored me as an immigrant to the U.S. just prior to the marriage (i.e. less than 10 years ago)?

Yeap, you should be required to pay all that sponsorship back.

 

[DecisionTime]

Yeap, you should be required to pay all that sponsorship back.

I'm not sure if you're being sarcastic here? No money changed hands; no financial support was provided from him to me. He undertook to the US government that he would be responsible for my support so that I would not be a burden to the taxpayer. I just don't know whether that has any bearing on an alimony case. I guess probably not, as that's simply his contract with the government regarding the possibility of me being a public burden, which I'm not.

 

[mistoffolees]

I'm not sure if you're being sarcastic here? No money changed hands; no financial support was provided from him to me. He undertook to the US government that he would be responsible for my support so that I would not be a burden to the taxpayer. I just don't know whether that has any bearing on an alimony case. I guess probably not, as that's simply his contract with the government regarding the possibility of me being a public burden, which I'm not.

Ignore Bali. He hates women and also hates the fact that he wasn't allowed to throw his wife out on the street and keep all of their family's money.

Since he supported you, he has an obligation to the government that says that if you can't support yourself, he will do it so you don't become a burden on society. As long as you're independent and making a living (and paying taxes), the government doesn't really care.

Where it MIGHT have an impact on alimony is compensatory alimony. There are 3 types of alimony in OR

In addition to the possibility of maintenance, you may also be paying compensatory. Technically, it says you could have to pay it if "there has been a significant financial or other contribution by one party to the education, training, vocational skills, career or earning capacity of the other party". I would guess that bringing you to the US had an impact on your earning capacity, so it might become an issue.

See an attorney.

 

[Bali Hai]

Ignore Bali. He hates women and also hates the fact that he wasn't allowed to throw his wife out on the street and keep all of their family's money.
Since he supported you, he has an obligation to the government that says that if you can't support yourself, he will do it so you don't become a burden on society. As long as you're independent and making a living (and paying taxes), the government doesn't really care.

Where it MIGHT have an impact on alimony is compensatory alimony. There are 3 types of alimony in OR

In addition to the possibility of maintenance, you may also be paying compensatory. Technically, it says you could have to pay it if "there has been a significant financial or other contribution by one party to the education, training, vocational skills, career or earning capacity of the other party". I would guess that bringing you to the US had an impact on your earning capacity, so it might become an issue.

See an attorney.

And Misty seems to think that it's OK to completely fabricate something and actually thinks others will believe it's the truth. Do you EVER get tired of making things up and lying about other people's position?

 

[LdiJ]

And Misty seems to think that it's OK to completely fabricate something and actually thinks others will believe it's the truth. Do you EVER get tired of making things up and lying about other people's position?

What did he make up? That's basically what you have stated since the first day you started posting here.