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Dimitry K., Esq.
Dimitry K., Esq., Attorney
Category: Family Law
Satisfied Customers: 41220
Experience:  I provide family and divorce law advice to my clients in my firm.
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Customer Question

I am 44 yo and My husband and I were married for over 11 years and have two small children. He traveled as a self employed consultant full time and I gave up my Career to stay at home. He found a client in my home state of Kansas and so he had me pack and sell our home in Texas. He never did find us a place to live and me and my kids ended up living in one room at a relatives house as he decided he wants a divorce. I had to wait to file for divorce 60 days and just found out he cashed out our entire retirement IRA account that was 150,000. His name was on it only and so he could do it without my consent. He has kept all his business accounts secret and has only given me enough to cover basic bills including the mortgage on our home that will be sold next month and we don't have any
Equity In the home. He is living rent free in a luxury apt that is being paid for by his client. Can he get away with cashing out our retirement account( the majority of contributions occurred during the marriage) since we are technically married and I wasn't able to file because of residency requirements and coming up with retainer for attorney.
Submitted: 3 years ago.
Category: Family Law
Expert:  Dimitry K., Esq. replied 3 years ago.
Thank you for your question. Please permit me to assist you this evening.

That is a very sad situation that you are in, truly. My answer may depend a bit on where your spouse filed for divorce. Was it in Kansas or in Texas?
Customer: replied 3 years ago.
No one has filed yet, but I am hoping to file first in Kansas and have been here now past 60 days.
Expert:  Dimitry K., Esq. replied 3 years ago.

Thank you for your follow-up, Rhonda.

I would suggest you consider waiting and file in Texas. Here is why:

Unlike Kansas which is an 'equitable distribution' state pertaining to assets, Texas is a 'community property' state. The difference is profound; Texas treats all assets earned and obtained while married (other than exceptions for inheritances, prior assets, or specific conditions agreed upon via a prenup or a postnup agreement) as 50/50 owned by both spouses, REGARDLESS in whose name those assets are listed. To put it in perspective, if your spouse started this IRA while married to you and it grew to $150,000, it is irrelevant that he siphoned the accounts, upon divorce he would be required to pay you your share of exactly half, or $75,000. Kansas, on the other hand, is an 'equitable distribution' state which means that the courts attempt to help the spouses split assets in a 'fair' and in an 'equitable' manner that is not necessarily equal. This type of a scheme favors a party who works rather than the stay-at-home spouse.

To answer your underlying question, under Kansas laws your spouse would have to provide an accounting of all assets, earnings, and accounts, but because the account is in his name, he would be able to claim a greater interest and potentially justify the removal of funds. Under Texas law he would also have to provide an accounting, but such an argument would be far less persuasive to the courts. Furthermore, please keep in mind that it is irrelevant as to who files first, that does not affect who is in a better position in a potential settlement, what governs more is how the split is governed and under what law.

Hope that helps.

Customer: replied 3 years ago.
We no longer live in Texas, how can I file in Texas?
Expert:  Dimitry K., Esq. replied 3 years ago.

If you haven't been gone for 6 months, you are still legally considered residents in Texas. Simply go back to their courthouse and file there claiming that your residency as yet has not been changed to Kansas if you haven't lived there long enough. You may even want to consider retaining an attorney in Texas so that the attorney can file for you as quickly as possible if you are close to this 180 day deadline.

Good luck.

Expert:  Dimitry K., Esq. replied 3 years ago.

May I ask why you rated my answer as 'bad'? What specifically did I fail to address, or are you just unhappy over the information? Your rating does affect me, and I would respectfully XXXXX XXXXX ask why you felt my answer warranted such a rating. Thank you.