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Question about split of retirement assets

Bethesda, MD |
Filed under: Divorce Adultery

In the state of Maryland is the split of retirement assets set by law at 50/50 or is it negotiable and can be set at something different by the parties? Would a judge ever split retirement assets differently than 50/50? The primary assets we have are the house (which I made all the payments for over 20 years) and our respective retirement accounts. If the standard calculation is used, he would get 43% of my 401k and 50% of my 457 and I get a third of his defined benefit plan. He ends up being better off in retirement than he is working while I am much worse off. I earned 3x the amount he does throughout the marriage. This all seems very unfair and lawyers are telling me there's nothing that can b done even if I find a smoking gun (like adultery or something).

Attorney Answers 4

Posted

Generally,marital assets (an asset acquired during the marriage) of all types end up being split 50-50 but there can be reasons for a court to change this. Mere fact that you earned more is typically NOT one of the reasons. This is a simplistic answer to a complicated question and you need to hire a lawyer and not keep seeking opinions until you find one you like.

This is not to be considered legal advise and no attorney client has been established.

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Posted

A judge starts with the default approach, which is a 50/50 division of marital assets, including retirement earned during marriage, house equity, investments, antiques, etc., while taking into account the liabilities. Such an award typically takes the form of an order of monetary compensation of a certain amount or it could be an order that retirement be split up with different percentages. Maryland provides for equitable distribution of marital assets, which means that the court may divide up the marital assets in percentages different from 50/50 based on various factors which advocate for something different, for example, adultery, domestic violence, a tort committed against the other spouse, dissipation of marital assets through gambling, maintaining a lover, giving away large gifts to friends and family without the spouse's approval, etc., or the wasteful acquisition of debt unnecessarily and unfairly.

I recommend you consult with an attorney and go over all the facts of your marriage to see if there are any factors which advocate for a split of marital assets more in your favor. This might cost a few hundred dollars, but could potentially yield far greater benefits.

Office: (410) 381-1656. This is NOT legal advice, is GENERAL INFORMATION ONLY, and does NOT establish an Attorney/Client Relationship with you. Therefore my answer cannot address your specific legal situation and you should not rely upon my answer in your legal matter. I am an attorney licensed in Maryland and California. Office: (410) 381-1656. David Mahood, Esq.

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Posted

Division of retirement assets is not set by law at 50-50. The judges can and do (at times) vary from an equal division of assets. The division is to be "equitable" not necessarily "equal."

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Posted

The points made in the other answers are all true, but could a Judge divide the retirement assets in a manner other than 50/50, sure. When dividing the marital estate by title won't produce an equitable result, The Court will typically make a monetary award to one party or the other. Prior to making such an award, the Judge has to consider a number of factors, including the following: the contributions of each party, monetary and non-monetary to the well being of the family, the value of all property interests of each party, the economic circumstances of each party at time of divorce, the circumstances that led to estrangement of the parties, the duration of the marriage, the age of each party, the physical and mental health of each party, how and when property was acquired, the non-marital contributions of either party, any award of alimony or use and possession, any other factors. Every case is different, but it's through the application of these factors to the facts of your case that you can start to see whether splitting the retirement assets other than 50/50 is a possibility. Also, there is MD case law supporting the division of retirement assets as of the date of separation rather than the date of divorce. This is another path to pursue if you've continued to deposit funds into your retirement account since the date of separation. In any event, if you think the facts of your case support something other than a 50/50 split, you should consult your counsel, or get a second opinion, and go through the all of the factors considering the relevant facts in your case, before agreeing to 50/50 split. It depends upon the case, but often the amounts being divided are large enough to justify litigating this issue. You should definitely consult an experienced family law attorney.

This answer is provided for informational purposes only. It is not offered as legal advice and does not create an attorney-client relationship between the author and the reader. The author is an attorney licensed to practice law in the State of Maryland and the article is based solely on Maryland law.

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