Legal separation advice: Who is responsible for the debt?

Question:

I’m looking for legal separation advice. While my wife and I were separated but still married, I paid off two loans using money I cashed in from my 401k. I was told I would be the one solely responsible for the taxes on the 401k withdrawl.

At what point in a separation leading to a divorce are assets and debt still considered marital property? Should we both be responsible for the tax money owed?

Answer:

Thank you for submitting your question about separation advice for men. You are a married individual until your divorce is finalized. Hence, any property that you acquire from the date you were married to the date that you get your court order granting your divorce will be marital property with a few exceptions.

Marital property is any property, including regular household debts incurred during the marriage (again, from the date of the wedding until the judgment of divorce is entered), that is subject to an equitable distribution between the parties.

If the 401k was not acquired during your marriage, then it is likely separate property, unless there has been some commingling of the 401k funds with some other type of marital property you hold.

If you acquired this 401k during your marriage, even during your legal separation, it is marital property that you will likely be deemed to share with your wife.  Regular household debts incurred during the marriage are generally assumed to be joint debts regardless of whose name is actually on the note or agreement that secures the debt.

But, if the loans you paid off with the 401k monies were debts that were incurred for a separate purpose, or were not for the good of the household, or were not consented to by your spouse, then it is possible that the court will consider the debts, and the money you used to pay for those debts, to be separate property.

Please note that I am not able to give you legal separation advice without having thoroughly reviewed your case, and therefore you should not rely on this information as an establishment of an attorney-client relationship.

If you need detailed information or advice, or wish to take specific action in this matter, you need to contact an attorney immediately for assistance. Cordell & Cordell does represent clients and nationwide.

To schedule an appointment with Tamara Hoffstatter, an attorney in the Troy, Michigan, office of Cordell & Cordell, please contact Cordell & Cordell.

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