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Separated from council on divorce case. In equitable distribution, what is general rule on marital jointly owned home? 401k?

Lancaster, PA |
Filed under: Divorce

AGAIN. There is no issue on advice given as of 02-01-11(after 4 years)I separated from council. I won't procede without new council when it concerns money & custody. That said, during this brief pro se period,I've had more movement w/ motions & evidence put into record than w/ previous council over the past 4 yrs.

The current payoff is $107,000. Using current appraisal low-end value ($234,000), what is the calculated portion to me? Is it $234,000 less $107,000 which leaves equity @ $127,000 & my portion at a 50/50 split? $63,500? If not 50/50 split, is the range no more or less 60/40? My former attorney made a settlement offer($85,000) in Oct'08. To date this offer has been represented. Wife refuses to acknowledge it. What's the benefit to her by stalling? How is $160,000 401k figured?

Attorney Answers 2

  1. Without a complete review of all facts and circumstances relevant to your case it is impossible to provide an exact, non-general opinion. Having stated that, generally, any and all assets amassed during the marriage are presumed to be equally divided (50/50) within the finalization of a divorce. If a piece of real estate was purchased during the marriage and one party wants to buyout the other's interest, the buyout is generally calculated by taking taking the present value (preferrably obtained from a Licensed Real Estate Appraiser), subtracting any and all encumbrances against the property (mortgage/home equity line balances) and dividing by two.

    Retirement benefits are similary addressed in that each party is generally entitled to receive 50% of the retirement benefits amassed during the marriage.

    One reason some litigants stall is that they are trying to prolong the benefit of a Pendente Lite Order (temporary Order of support), as he/she anticipates that their financial position will only get worse once the divorce is finalized. Without knowing more I can not offer an opinion regarding why your wife may be stalling.

    If I can provide additional information, please do not hesitate to contact me.

    Kenneth A. White, Esq.

  2. As the previous post mentioned, it is impossible to give specific advice without knowing all of the facts. However, it should be noted that marital property is not necessarily split 50/50 in each case. From your post, it sounds like the equity in your home will be marital property. The value of your retirement accounts and her retirement accounts that were contributed to during the marriage will also be considered marital property. The value of the retirement accounts, plus the equity in the home, plus the value of any other real and personal marital property will all be added together to determine the value of the marital estate. If a settlement can't be reached and a divorce master is appointed, the divorce master will make a determination on how to divide the marital estate based upon a number of factors. A determination will also be made on how to divide the marital debts.
    Now, as to what is and isn't calculated in marital property will be a factual determiniation. Without more facts its impossible to say what portion of the 401k or other property actually would be marital property.

    Equitable distribution claims tend to be very difficult. I would highly suggest that you retain counsel asap.

    Justin C. Gearty Jr., Esquire
    Law Office of Justin C Gearty Jr

    This post is for educational purposes only and does not create an attorney-client relationship.

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