Legal Question in Family Law in North Carolina

I am doind the Legal Separation forms and my wife would like to retain access to my future retirement funds... not just what I have earned thus far. At the same time she has an 85 year old father who has an owned property (no mortgage), about $1.5 million in stocks bonds etc that will be split between her and her 3 siblings. If we are separated and this is not addressed, what is my status and claim to any of these funds should her father pass, does that fact that we have minor child at home with full shared custody. He is 9 years old and spends 4 of 7 days with me each week. I am in North Carolina.

Arnold Osborn

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Asked on 3/30/12, 6:06 am

1 Answer from Attorneys

Any inheritance is separate property. So you have no claim to any proposed inheritance by your wife for so long as she keeps it separate (non-marital). If she somehow received an inheritance and commingled it with marital funds, then in that case it might be marital. And since her father is alive, he doesn't have to leave your ex-wife a dime if he so chooses. Children do not have a "right" or entitlement to inherit anything from their parents and you certainly have no claim on any expectancy.

The minor child is separate. I don't see what that has to do with anything. I hope that your spouse, if she receives an inheritance, would go to an estate planning lawyer and set up a trust for the benefit of your minor child in the event that something happened to her. You may or may not be trustee of any such trust and just because you might be the guardian as you are the parent does not mean that your ex-wife would need to make you the trustee.

I don't know what kind of forms you are filling out or why you are posting questions here. You should be hiring a family law attorney to draft a marital separation agreement. I don't understand about your wife retaining "access" to your future retirement. It doesn't work this way. When parties divorce, all marital assets and debts are subject to equitable division (unless you are in a community property state, but NC is an equitable division state). The wife's portion of your retirement (and your portion of any retirement owned by your ex-wife) is generally based on this formula:

length of marriage/number of years worked for the employer (called the coverture fraction) x amoount of retirement.

Once a percentage is worked out then a "QDRO" (qua-dro or Qualified Domestic Relations Order) must be prepared and submitted to the administrator of your pension plan. Each administrator has iths own requirements and you should get an experienced family attorney to draft the QDRO. Upon receipt, the plan administrator basically divides the pension/retirement into 2 portions. Your ex-wife then rolls over her portion into an IRA and your portion stays. There is no "access" to future earnings/pension.

If you are already receiving the pension/retirement, then whatever percentage your wife is entitled to gets paid to her and the rest to you with each check.

Again, you need to see an experienced family law attorney about this.

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Answered on 3/30/12, 10:05 am


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