1/2 401k or child support

[poboy]

My wife is very insistant on a divorce that I do not want. She wants half of one of my 401k's instaed of child support. Daughter will be 11 next week. If I agree to 401k deal, can she not come back on me for child support at any time she wants? I feel my daughter will be with me anyway, and that is great with me, but I always have been told the wife has the upper hand in a divorce. My wife knows I will take care of my daughter no matter what. Should I give up 20k in retirement or pay child support for my daughter who I truly believe will spend most of her time with me?

[Wolfy]

I'm in Minnesota and here child support is always open. I think it's because the children always need to be taken care of. Should your stbx loose her job and get more custody of your daughter she would likely go for child support and would already have your 401K. I'm no expert though, so wait for more answers from people more in the know, but I would be leary of this deal.

[TC]

First question is, who is going to have primary physical custody of the child?

If you think you wife is going to have her stay with you most of the time, I'd assume you are going to fight for custody?  In which case, you will not be reponsible for child support.

What does your attonrney say?

TC

[m_t]

Most courts will not allow you (generic) to waive child support (except in cases of true 50/50 custody) - it is the child's right to be supported by both parents. Even if Mom doesn't want to take CS, it is likely to be ordered. IF by some chance it isn't, no court will stop her from filing for it in the future.

Having said that, Mom is likely entitled to a portion (probably half) of the moneys put into your 401k after the date of marriage - just as you are entitled to a portion of hers. That's a marital asset and will be included in the property settlement one way or another.

If you believe your daughter will be with you the majority of time anyway, discuss with your attorney the best way to try and have that in the orders from the get-go, or at least a 50/50 time share.

May I ask what state you're in?

[poboy]

Wife wants it to be joint legal and physical custody, with no child support, but also adds that I may have to help her with child expenses from time to time. I am afraid I will not be able to give the money she asks for (from time to time) or not agree with what the money is use for. I think from what I have heard so far I would be ahead to pay cs and forget the 401k. I am afraid she will get the 401k and then come back for cs soon afterwards.

I live in in the great state of Alabama.

I need advice quickly, she is pressuring me to file. Today has been with little talking. When I talk she says she will go see a lawyer Monday. She is COLD and very unwilling to talk. She is the one I confided in always with all problems, no she is cold and hurtful!!!!!!

[Wolfy]

First of all, divorces and legal questions are rarely done so fast that you need to get things done quickly. Think about it this way. If you are ordered to pay child support and you don't give up your 401K, the child support will end when the child reaches a certain age and your retirement will still be there. If you give up your 401K and later your stbx is awarded child support, you will again pay child support until your daughter is a certain age but your retirement account wont be in near as good a shape and you may have to delay retiring for quite a while.

Also, It's not about who the child actually stays with. It's about who the court orders the child to be with and for how much of the time and how much each person earns. So if the court gives your stbx 70% physical custody but the child stays more with you anyway, you will still be ordered to pay child support to your stbx.

So I am agreeing with youthat you should leave your 401K intact and pay whatever child support is ordered. That's just my opinion.

[m_t]

People - the 401k is a marital asset - poboy may not have the choice to "leave it intact". The stbx is entitled to half of what was accrued during the term of the marriage. If there's nothing of like value to offset that, he's gonna be giving part of it up. Period. End of story.

[Wolfy]

M_t

You are of course right. My point was that he should not voluntarily give up his 401K expecting that his stbx would not ask (or the court not decree) for child support. That was his originial question.

[m_t]

You're right, Wolfy - and I likely should have addressed my response directly to poboy as I'm not sure he gets that part.

poboy - it really is not an either/or situation. You may well be ordered to give her a portion of the 401k AND pay child support even if you have 50/50 custody. All depends on your individual financial situations.

[poboy]

Sounds like I am screwed financially. How is the best way to have it written up. I think now it is best to have everything written in black and white so as to keep down problems later. I just don't want to pay all of this to her and end up financially strapped. Besides I don't want this anyway, and I am the paying out the a@@ to make her happy.

[TC]

Sounds like I am screwed financially. How is the best way to have it written up. I think now it is best to have everything written in black and white so as to keep down problems later. I just don't want to pay all of this to her and end up financially strapped. Besides I don't want this anyway, and I am the paying out the a@@ to make her happy.

QUIT trying to make HER happy.  Do what is right for the kid and let her worry bout herself.  You ARE NOT responsible for HER decisions.

TC

[m_t]

Sounds like I am screwed financially.

For starters, let's lose the drama. You don't know whether or not you're screwed financially or not. You NEED to talk to your lawyer and you NEED to make sure that it is a lawyer who specializes in Family Law. Not your run of the mill "let's make a will", "is my house title right", "make sure I'm covered properly if someone breaks their back walking up my driveway" sort of lawyer. FAMILY LAW. Someone who understands how custody works, how property settlements work, etc. If your lawyer is not one - get a referral and start interviewing someone. For you, a shark. Best bet is likely a b*tch on wheels. Yes, a ball-busting female attorney.

In other words, empower yourself and stop being a bloody victim. Protect yourself and your kid. Educate yourself. Get to work. Now.

[poboy]

We had our daughter's 11th birthday party today, both families here, lots of tension. I am leaning toward doing whatever is "legal" I reckon I will have to pay cs of $650.00 or more and still possibly 1\2 of 401k. My lawyer (do not know if "family lawyer" or not) says stbx can not touch my 401k. Friend of mine 2 divorces later says 401k is safe. I just need good sound advice and get this misery over!!!!!!!!!!!!! I hate it but "she" says no other way DIVORCE!!!!

[Wolfy]

Remember, she is out to get the best deal she can. Divorce is business, handle it as such. Have her send any proposals to your lawyer, and then review it with him. Don't talk about it betweeen the two of you.

[enough is enough]

Try not to communicate to much with your stbx. Emotion usually makes us do things we will regret later. I'm sure your trying to be the nice guy to show her she's making a mistake. Trust me when I say it wont work. You need to think of yourself. Thats exactly what she is doing. Ask yourself what is she doing to make you happy. Probably not much.
Do yourself a favor. Do what I am trying so hard to do myself. Take care of you.