A WHAT IF scenerio--asking for insight

North Carolina Divorce Law Divorce and Separation Answers
1

Okay! So here’s the deal…

The STBX is currently living in the home that is both partners names; he’s there and she’s not and he professes that he will remain there and keep up the mortgage payment

She is going to be getting possession (temporary court order in DV case) of a car that is financed in both names.

Neither can refinance anything in their own name as it stands right now due to financial limitations. [although she is going to try go get the car put in her name alone and the insurance in her name alone, neither of which she can do unless she can refinance the whole car loan in her name. But suppose she can’t b/c of a late payment history and the house mortgage still in her name.]

He cannot (no way) afford to refinance the house in his name to get her off the mortgage; besides they MIGHT even be upside down in the mortgage. It is difficult to get a good comp on the home if it sells… if they;re lucky to find a buyer now they might, say MIGHT, either break even or come out of it with very, very small amount. Anyway…

There seems to be an impasse at the moment-- if she has the car and he has the house and both names are on each and neither can refinance… what if they/she just prays alot and hopes alot and let’s it be as it is since all hands seem to be tied. How does that affect the ability to get a divorce – if in one year everything stays as is, as has just been described?

You can’t get a divorce without a separation agreement, right>?
And how can you draw up a separation agreement when both of their names are on both the house and car together>?

I mean if a equitable distribution order and judge are involved he’d have them short sale the house at a likely $19K loss divided by 2.
And if the judge orders the sale of the car–they’d both loose financially there too!

So is there a statute of limitations on these things>? I’m just trying to think this through. Do people just go on – as is, as described above – until the economy gets better and hope for the best abd then get a divorce in 5 or 10 years–or maybe never? I mean, if it is going to cause a financial loss to both of them (and of course limitations would be involved too; disadvantages) to push these issues just to get a divorce, maybe they need to stay married just not to ‘take a bath’ financially.

See my point?>

bottom line is … can one draw up a separation agreement that says both names will stay on the property for now and both agree to that for now and they both sign AND THEN THEY CAN GET THE DIVORCE IN YEAR???

Thanks very much… will await your reply… i mean if this was your own sister, what would you tell her to do? she cannot afford to have a judge tell her she has to sell that car in order to split money with him simply b/c she can’t qualify to have it refinanced in her name right now! She couldn;t get a loan by herself to buy a new one. See what I mean?

Man O man! I can see why the institution of marriage is not attractive to people anymore… the law sure doesn’t make it easy to disengage financially! there MUST BE a loop hole or an exception somehow? isn’t there?

2

You can get a divorce without a separation agreement, but must file claims for equitable distribution and alimony at the time the divorce is filed.

3

Okay. Well, she doesn’t HAVE to file for or ask for alimony, correct?

And if she DOES NOT file for equitable distribution at the time she files for divorce, that means (I assume) that she gives up any rights or say-so to the house.

if she should (I’m just sayen’… who knows how it will turn out) but if she does neither, she can still file for the divorce–correct?

In other words, she doesn’t have to file for either one to go forward to get the divorce after a year, right?

do you know how it works if the car get’s paid off in 2 years and they are both still on the title…then can he willingly take his name off the title if it is not held by a lienholder>? I mean, the title is in their hands, both names are on it, and she asks him to take his name off… can they go to the DMV and just do that somehow? do you know how that works>?

4

No she does not have to ask for alimony.
If she does not either have a separation agreement or file for ED at the time of divorce, they will continue to own the home jointly and all other property will become the property of the person whose name it is in.
He can sign over a power of attorney for the car, and execute title later when it is released by the lienholder

5

where does she get a power of attorney form? does the bank give her that?

6

She will need to have one drafted either on her own, or through getting a lawyer.

7

okay, well i see that the North Carolina DMV has a power of attorney form for vehicle transfer on their website and I downloaded the simple one page PDF. The form contains fill-in the blank categories for his name, make, model, year of vehicle, serial number of vehicle and then reads this way:
does hereby authorize and irrevocably appoint

(attorney)
my or our lawful attorney to sign in the name place and stead of the undersigned, any certificate or title covering the vehicle described above in whatever manner necessary to affect the transfer of such title, … yada, yada, yada

and it goes on a bit more followed by the signature routine and notary fill in the blank stuff.

the QUESTION is, if she can get him to sign this and have it notarized, can he write HER (wife’s) name in the blank so she can take that to the DMV once the car is paid off? – for the purpose of having the title put in her name?

8

He will likely have to sign the title when it is released.

9

well, she wants to get the car in her name now if possible… to have it RE-financed in her name and so she can have the auto insurance in her name too. This STBX plays dumb about paying bills and she is trying to disengage from financial connections to him. The bank said if the paperwork at the bank says AND or if it says OR makes a big difference. In other words, how I understand it, if the car loan is listed this way: _____ OR _____ (last name) , then she can apply to have a new loan with only her on the loan.

However if it reads AND instead of OR, then she needs him to … well, I don’t know what she needs. I assume that the bank would ask for him to sign but since we’re talking domestic violence, she really doesn’t want interaction with him in person, so that’s where the POWER OF ATTORNEY comes in, if she can get him to sign it so she can get the car and then auto insurance in her name alone.

Its a long shot b/c we don’t know if he’d be willing to do it or not.

can he write in her name–if he does agree to it-- where it says

(attorney)

for her to act on his behalf? well, maybe this is a better question for the bank than here … but any ideas or insight are welcome.

10

She can refinance the loan into her own name, and have the title reissued to the new lienholder in her name only.