I can't afford to pay it all at once. We were only married a few years, and all the debt is in his name. We're trying to settle and I've offered to make payments but he wants it all at once, and it will cost me to take my retirement out early (which I earned before we were married most of it). If the judge does order that, will I have to pay the penalty or will he?
Based upon what you have said and nothing more, the judge would likely split that portion of your retirement that was earned during the marriage to in a way That would compensate for an unequal divosion of debts. I doubt the judge will or can force you to withdraw from your retirement and take a penalty. The judge can only award to the other party a disproportionate share of your retirement earned during marriage to make up a difference in the amount of debt one party takes. Once the retirement is divided through what is called a QDRO, your spoise can decide to take the money out and pay a penalty from his share. All this to say, there are probably other ways to address your situation but to do so would require an understanding of all the community debts and assets to be divided. If you are not represented by counsel you should at least consult with one, especially if you cannot reach an agreement and you are headed to trial. Good luck.
The answer to your question is almost certainly NO---a court would normally never 'force' or direct a person to withdraw funds from a retirement-type account in a way that would incur a penalty, simply for the purpose of paying a joint debt. The Court has authority to divide, that is, to assign responsibility for joint debt as between the two spouses ('joint' in this case meaning, debt incurred during the marriage), but normally a court doesn't do any more than assign responsibility (as between the spouses)---the court typically will not "direct" how a particular debt actually gets paid, unless there's some wrong-doing or misbehavior which a judge is attempting to address. So I agree in general with Mr. Shepard's response but wanted to note these specifics.
These comments do not constitute legal advice, and are only intended as general information which may or may not be applicable to your unique and individual circumstances. There is no substitute for actual consultation with an experienced licensed attorney in your jurisdiction or location.
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