judgement/decree

[jenjen]

no fault state florida

In my divorce there was suppose to be equal distribution of marital assets.(according to law) I am to recieve half of my x's 401k, a portion of there retirement to balance mine and home equity to be spilt in half.

x never returned to marital home after being arrested and later released for domestic abuse in 2004 and filed for divorce 2004.

x did not contribute to the marital home since the arrest in 2004 and we
just completed divorce in 2007, havent recieved papers yet

judge ordered x's 401k to be divided on it's 2004 value
judged ordered equity divided on homes 2007 value


I feel that the judge errored it seems to me that the judge should have ordered the 401k based on it's 2007 value like she did on the marital home or if not,  then she should have based the homes equity on the  2004 value, like she did with the 401k

question:

1.Can this be addressed again in court?


2.If so when and how?


3.Once a final judgment/decree is given can it be amended, reconsidered or perhaps appealed?



thank you soc

[socrateaser]

>question:
>
>1.Can this be addressed again in court?

No. Earnings accumulated after separation are the separate property of the spouse who earns them. So, if your separation occured in 2004, then from that point on any increased value in the 401(K) are the separate property of the owner-spouse.

This isn't the same as your home, because you were co-owners (husband and wife).

>2.If so when and how?

N/A

>3.Once a final judgment/decree is given can it be amended,
>reconsidered or perhaps appealed?

All of the above on good cause, but you don't have it on this issue.

[jenjen]

Thank you so very much.....all looks fair and done...now i'm going to enjoy this new piece of mind and venture foward, there's a whole new world waiting for me :)

[mistoffolees]

>>question:
>>
>>1.Can this be addressed again in court?
>
>No. Earnings accumulated after separation are the separate
>property of the spouse who earns them. So, if your separation
>occured in 2004, then from that point on any increased value
>in the 401(K) are the separate property of the owner-spouse.
>


Is this something that depends on the state?

The way my attorney explained it to me (OK) is that any funds which were in the 401K at the time of the divorce will be equally split. However, since it takes time for the divorce to go through, any growth would also be split - on the basis of percent ownership at the time of the divorce.

Let's say the 401K is $100,000 at the time of the divorce and it's split equally. 3 years later when the divorce is final and the assets are split, the 401K has grown to $150,000 (with no new money being added). Each spouse would get $75,000. This sounds like the issue above.

If, however, one of the spouses continues to add to the 401K, their new additions are their own separate property. That creates some accounting problems (how much of the growth is on the old money and how much is on the new money) so she advised me to stop contributing to the old 401K if I could put my new retirement money somewhere else.

Am I missing something?

[socrateaser]

>Is this something that depends on the state?

Yes. And, sometimes on federal, too.

>
>The way my attorney explained it to me (OK) is that any funds
>which were in the 401K at the time of the divorce will be
>equally split. However, since it takes time for the divorce to
>go through, any growth would also be split - on the basis of
>percent ownership at the time of the divorce.
>
>Let's say the 401K is $100,000 at the time of the divorce and
>it's split equally. 3 years later when the divorce is final
>and the assets are split, the 401K has grown to $150,000 (with
>no new money being added). Each spouse would get $75,000. This
>sounds like the issue above.
>
>If, however, one of the spouses continues to add to the 401K,
>their new additions are their own separate property. That
>creates some accounting problems (how much of the growth is on
>the old money and how much is on the new money) so she advised
>me to stop contributing to the old 401K if I could put my new
>retirement money somewhere else.
>
>Am I missing something?

Nope. There are dozens of ways to calculate value of comingled assets, depending on the timing of various events. Frequently the cost of calculating, documenting and arguing, all of the variables becomes more expensive then the change in the amount of money at stake.

When that happens, a competent attorney will tell the client that he/she is about to waste money over a net losing issue. An incompetent attorney will just let the client complain, bill for the time, and take the profit, while the client takes a loss, and goes grumbling off, not understanding why.

Unfortunately, attorneys other than patent and tax, are generally horrible at math and finances, in my opinion, and the result is that they can't figure out if there's a cost/benefit invovled. So, they just ignore it and do what the client wants or what "feels" right to the attorney.

In your example, one state might divide the increase in asset value at the time of final judgment, another might do it at the time of trial, and another might do it at the time of physical separation/provable intent to end the marriage.

And, the rules may vary depending upon the type of asset involved. In Ca, for example, the answer would be that the value of the account would be fixed at the time of separation, and then any appreciation of that value which occurred afterwards would be divided 50/50 at the time of final judgment. Any additional money deposited by the account holder would be separate property of that person, as would any appreciation thereon.

But, Ca is a community property jurisdiction, and the court is required to divide each asset in half. In a separate property state, like FL, the 401K is the property of the account holder, and the court has discretion to divide the amount between the spouses in a fair/equitable manner. Same for OK. And, if there are local statutes/case law which may create a different outcome, then those statutes/case law govern.

I can't tell if the judge in jenjen's case applied the law correctly or not, because I don't practice FL law. But, I'm betting that the FL judge knows how to divide a 401(k) better than I do. So, my suggestion is that jenjen not get into a battle over the issue, at least not unless she has her attorney explain the cost/benefit of the possible outcomes.