She would be entitled to the portion of the 401K that was earned
during the marriage
. This is usually determined from taking the total amount of the 401K over the percentage corresponding to the length of marriage. Only that percentage from the marriage will be distributed according to the equitable distribution
state of TN, which begins at 50% but could go up or down depending on the following factors as determined on a case by case basis. The balance of the 401, would be treated as your separate property.
Quoting TN Equitable Distribution factors:
The duration of the marriage;
The age, physical and mental health, vocational skills, employability, earning capacity, estate, financial liabilities, and financial needs of each of the parties;
The tangible or intangible contribution by one (1) party to the education, training, or increased earning power of the other party;
The relative ability of each party for future acquisitions of capital assets and income;
The contribution of each party to the acquisition, preservation, appreciation or dissipation of the marital or separate property, including the contribution of a party to the marriage as homemaker, wage earner, or parent, with the contribution of a party as homemaker or wage earner to be given the same weight if each party has fulfilled its role;
The value of the separate property of each party;
The estate of each party at the time of the marriage;
The economic circumstances of each party at the time the division of property is to become effective;
The tax consequences to each party; and
Such other factors as are necessary to consider the equities between the parties.
As to the loan balance, the court will first want to see the purpose for getting the loan. If it was to benefit the marriage, then both of you would be responsible for the payment. If the loan was for the personal benefit of one of the spouses, rather than the marriage, then the spouse who incurred the debt, could be solely made responsible for the balance.
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