1/2 401k or child support

[poboy]

enough: She is still here with me in our house because she cannnot afford to leave. Yet she is head strong that she can take everything if she so chooses.
try: I know they know what they are talking about, but it is different living in it.
m_t: sounds like you know what you are talking about. I am gonna use your advice this week with the "lady" lawyer. Don't know if FAMILY lawyer or just lawyer. Never thought about it that way. I think take the legal punishment"money, for being a husband looking into the future" and figure out how to make it work.
This is, as you all welll know the hardest most gut wrenching part of life I have ever experienced.
Thanks for listening.

[m_t]

Dude (don't take offense - I call lots of people "dude", including my own son)... if you don't know whether your lawyer is a family lawyer or not? He's likely not. Talk to people you know in the community who likely know people (or know people who know people) and see who'd they'd recommend. Your doctor, your own lawyer (and tell him it's not that you don't trust him, but that you feel you need someone who deals with these situations daily), your mechanic, etc. I got my best referral from my realtor. She didn't know a lawyer personally, but she had people she could ask and got me three solid leads: a low-key easy going atty, a middle of the road guy, and the one I ended up with - my bitch on wheels. What *I* liked about her when I went for an initial consult was that SHE gave me the name of another lawyer - the one SHE would use if she were in my situation. Went as far as calling him herself, then and there, and convincing him to see me immediately. I didn't like him, personally, but I was impressed that she was willing to send me to someone else. So I retained her, and she did well by me.

I'm sure someone from 'Bama can tell you better (or check out Lee's Bama-specific page http://divorceinfo.com/alhelps.htm ) regarding whether CS in 'Bama is based on both incomes and whether time-share is included in the calculations.

As for your 401k... I'm pretty sure those who are telling you she can't touch it are wrong. If you go to http://divorceinfo.com/alfaqspropertydivision.htm , Lee addresses retirement plans:

How do retirement plans get divided?

*   The spouse owning the benefits must have a vested interest in them or be receiving them on the date the divorce action is filed.
*   The parties must have been married for 10 years, during which the retirement benefit was being accumulated.
*   Any retirement benefits accumulated before the marriage, including any earnings produced by such benefits, must be excluded.
*   The total benefit extended to the non-covered spouse may not exceed half the benefit to be considered.
*   The payout to the non-covered spouse may not begin until the covered spouse begins receiving benefits or reaches age 65, whichever occurs first.

These restrictions are binding only on judges. The parties can agree otherwise, for example to begin payout to the non-covered spouse independently of the retirement of the covered spouse.

So.... yeah, it's on the table. BUT - so is hers. What I would do in your shoes is start scouring every resource you possibly can. Google is your friend. As I said earlier - educate yourself. Your lawyer's best client is one who know what s/he is talking about and doesn't need every little thing explained. It makes their job easier - which means it costs you less. Don't be afraid to bring info that you've found and ask if that would work for your case. And always remember that while s/he may have the legal expertise, it is YOUR life and s/he works for YOU, not vice-versa. Also - keep that relationship professional. If you need a place to vent, cry, ask why - do it here, a counselor, friends, family. Do not use your lawyer for that. Apart from anything else, it will cost you a fortune.

[InDenial]

I need advice quickly, she is pressuring me to file.

She wants YOU to file? Um, why?   Slow down there and talk to a lawyer first!  Maybe there is a strategic advantage if you are the one who files, but technically if SHE wants the divorce and YOU don't, then why should YOU file?

[m_t]

S/he who files, sets the tone. Don't be afraid to be the one to do it. It will not be held against you.

[TC]

By the same token...don't do her dirty work for her...if she wants the damned divorce so bad, tell her to get off her ass and start the process....oh, and make sure she knows there is a healthy filing fee to get it done too.

TC

[Wolfy]

But in the mean time get your ducks in a row. Talk to your attorney and find out what she may be going after and what you can go after.

[Jade]

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?

Child support is always modifiable.  In other words, she can come back and get a  child support order.

And if the 401K was acquired during the marriage, half of it is hers anyway. 

[Jade]

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!!!!

Uh, my ex's 401K was left intact.  But only because I waived my right to half of it AND took on all the debt to buy him out of the house.  Had I not done that, I would have gotten half of it. 

You may want to look up what  QDRO is and the reason for it.  Your lawyer, who should know better, and your friends are not telling you accurate information. 

Your friend may have given up other assets of the same value or taken on debt in the amount of the ex's portion of the 401K and just isn't telling you that. 

BTW, half of any retirement account of your stbx's is yours. 

[Jade]

S/he who files, sets the tone. Don't be afraid to be the one to do it. It will not be held against you.

It also costs more to be the one who files first.  The initial filing fee, in NJ, is more than the fee to respond. 

[livealittle]

S/he who files, sets the tone. Don't be afraid to be the one to do it. It will not be held against you.

It also costs more to be the one who files first.  The initial filing fee, in NJ, is more than the fee to respond. 

but in AL, I highly recommend being the one to file first.

[m_t]

Ditto liv. And I'll add that I'd suggest it regardless of state. ESPECIALLY if it's a father looking for 50/50 or better.