# The Basics



## Starks (Mar 1, 2018)

I'm nowhere near a divorce or separation yet, but things are rocky, and as I'm wrapping my head around things and beginning to come to grips with the horrific realization that I will be possibly having to deal with this in the near future, the finer details are beginning to emerge. So basically my situation and questions are these:

State: 

New York

Income:

Me: 70K

Spouse: 65K

Assets:

Me: 401K (100 Gs)

Spouse: Nada

No houses, cars, properties

Kids:

None

Debts:

Me: 17K total (CCs, Student loan, etc. All in my name only)

Spouse: (20K total (CCs, Student loan, etc. All in spouse's name only)

Questions:

1) If everything stays more or less the same as above (i.e. spouse doesn't quit job) then we could pretty much just walk away with the signing of some papers, correct? The only thing to fight over would be our cat. I know the spouse would want half my 401K, and I would not fight that since it's fair enough. Do I have this right?

2) Should spouse lose or quit job (the 65K income) before the Big D, would I get hit with the dreaded alimony? Is alimony even a thing anymore? I've seen on this and other forums that alimony mostly comes into play when you have a well-off spouse and a stay-at-home spouse situation, or of course when there are kids involved (child support), but for a not-well-off individual with an average income and debts, would a judge be cold-hearted enough to destroy them with an alimony?

3) As for the debts, since my debt is my own and in my name, then I'm prepared to walk away with it and deal with it on my own. I would hope the same for the spouse, but could said spouse technically try to hit me up to pay off the spouse's debt? 

Thanks. I know I probably need a lawyer. 


Curious


----------



## farsidejunky (Mar 19, 2014)

Have you consulted an attorney?

This site can advise you well on the emotional steps you should take.

As for the legal ones...take it to an expert.


----------



## wilson (Nov 5, 2012)

Starks said:


> 2) Should spouse lose or quit job (the 65K income) before the Big D, would I get hit with the dreaded alimony? Is alimony even a thing anymore?


Alimony is still a thing, but it's very specific to the state in which you live. Different states have wildly different rules regarding alimony. I don't know NY, but I'm sure you can easily look it up.

As for one spouse losing their job, I've heard it explained that the court will take into consideration the earning potential of each spouse. So if you're making 70k and then quit your job, the judge is going to expect that you can get a similar job that pays a similar amount. The judge isn't going to distribute assets assuming you are unemployed. One difference is when a spouse has been unemployed for years and no longer has the same earning potential. This often happens when a spouse stays home for years. Even if they earned 100k before, that doesn't mean they can jump right back in at that salary or even get a job in the same field.


----------



## C3156 (Jun 13, 2012)

Starks said:


> Me: 401K (100 Gs)
> 1) If everything stays more or less the same as above (i.e. spouse doesn't quit job) then we could pretty much just walk away with the signing of some papers, correct? The only thing to fight over would be our cat. I know the spouse would want half my 401K, and I would not fight that since it's fair enough. Do I have this right?
> 
> 2) Should spouse lose or quit job (the 65K income) before the Big D, would I get hit with the dreaded alimony? Is alimony even a thing anymore? I've seen on this and other forums that alimony mostly comes into play when you have a well-off spouse and a stay-at-home spouse situation, or of course when there are kids involved (child support), but for a not-well-off individual with an average income and debts, would a judge be cold-hearted enough to destroy them with an alimony?
> ...


1. In theory, you are correct. Based on what you have written, split everything down the middle (except the cat), and you should be done.

2. See above, good answer. You didn't mention the length of marriage, but typically needs to be >10 yrs before it even becomes an issue.

3. Here is the kicker, all debt incurred during marriage belong to both people. So technically, anything that the two of you created during the course of the marriage can be divided in half and allocated to each person.

Since you do not have children and few assets, this should be a pretty easy divorce. if you can both be amicable, it could also be fairly inexpensive.


----------



## Thor (Oct 31, 2011)

I don't necessarily think it is morally fair for him to have half your 401k, though that would depend on the circumstances. If he has good reason he couldn't save, then ok. But if he just didn't bother to save because he wanted the new BMW and to snort cocaine then no it isn't morally acceptable.

However, the law has nothing to do with morality!

Generally your assets and debts from before the marriage remain yours as long as they were always just in your name. The value in your 401k prior to marriage plus whatever gains on that amount during the marriage should still be yours. Half the new contributions and half the gains on the new contributions would be yours. Similarly if he had owned a house before you were married and kept it in his name then you wouldn't be entitled to half the equity (but maybe some of the equity).

I believe student loans stay with the person in a divorce and are not part of the calculation for splitting assets 50/50. All the other assets and debts accruing during the marriage are generally split 50/50.

So you would keep your own student debt, and he would keep his. You should keep at least some of your 401k from what it was before you were married, and then split the remainder 50/50. The credit card debt gets split 50/50.

But this is pretty general, and your state might be different. Normally it is a numbers game, meaning you add up all the assets and subtract out all the debts, then divide by 2. That is how much you each walk away with. You may have an argument that you two have kept totally separate finances and thus should just keep everything in your own name. If your husband has squandered money against your wishes, such as on gambling or hookers, you can argue "wasting of marital assets" which he should pay you back out of his half of the settlement. That's the kind of thing a local attorney can advise you on.

Keep in mind that it costs a lot of money to have attornies argue things for you. And almost always the settlement is ultimately agreed upon by the spouses rather than by the judge. So if the amount in contention is relatively small then it may be best to just agree with it.

I believe NY has a 1 year waiting period for divorce. Once you file for divorce it should create a firewall between new and old finances. That is, anything that happens after filing is not included in the divorce. Thus you should get new bank accounts and credit cards immediately. If one of you buys a car, the loan does not attach to the other person at all. If you inherit money, it is not included in the settlement (he doesn't get any of it). The only exception could be alimony if one of you gets a big raise, but alimony is always a wild card with the judge getting a lot of leeway.


----------



## SpinyNorman (Jan 24, 2018)

Consult(but don't retain right away) an attorney. All aspects of divorce vary from state to state, and some very innocuous things can put you in a bad bargaining position.

But DON'T make it hostile. Consider mediation. Your attorney has an incentive to make it hostile, since that is more money for the attorney, and less for both of you. Remember, he works for you and fire him if he forgets it.

Good luck.


----------

