Another ED Question


#1

If he fails to comply with the order you can file a Motion and Order to show cause to ask the court to order him to comply. If that is no successful you can file a motion under Rule 70 of the NC Rules of Civil Procedure and ask the court for an order transferring the title.

Helena M. Nevicosi
Attorney with Rosen Law Firm

4101 Lake Boone Trail, Suite 500
Raleigh, North Carolina 27607
919.787.6668 main phone
919.787.6361 main fax

Charlotte Office
301 McCullough Drive
Suite 510
Charlotte, NC 28262
Main Phone: (704)307.4600
Main Fax: (704) 9343.0044

Durham & Chapel Hill Office
1829 East Franklin Street
Building 600
Chapel Hill, NC 27514
(919) 321.0780

ROSEN.COM

The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service only, a full discussion with an attorney should be undertaken before taking any action. The information posted on this forum is available for public viewing and is not intended to create an attorney client relationship with any individual. These answers are provided for informational purposes only, a person should consult with their own individual legal counsel before taking any action that could affect their legal rights or obligations.


#2

Helena,
Thank you for the information. I have 1 other quick question for you regarding inheritance. I received an inheritance during the marriage, opened a sole account in my name only and put the money there. We were only married for 4 years total and when we married he came into the marriage with nothing but a few personal belongings and furniture which he later sold. I owned a home solely when we married in 2002. In 2005 we moved to another house and I obtained the loan soley in my name due to his destroyed credit etc…and unfortunately was given incorrect information and his name is on the deed. The type of loan on the house is a no money down interest only ARM loan for the first 7 years of the loan, so the principal is not reducing. I have a first mortgage and then a second mortgage that is a home equity line of credit.
Here’s the deal: I paid off the 2nd mortgage in the amount of $36,200 from the inheritance funds. All of this can be traced back to where it came from, when the account was opened and the amount that went into the account, and the payoff check coming out of that same account to the mortgage company. Question: is he entitled to any of the equity in the home or is this considered separate due to it being paid with inheritance funds? I have gotten different information regarding this with gift to the marriage etc…but if it can be proved where it came from etc… that it will/can still fall under the statute guidelines.
Looking for some clear cut information for this situation as it will definitely make a difference when we go to mediation.
Thanks in advance…

Marissa Gott


#3

Marissa, did the judge award you the marital property solely?..if so, based on what? I thought it was to be split 50/50. I’m trying to get my marital property awarded to me…thanks.

quote:
[i]Originally posted by mgott[/i] [br]Helena, Thank you for the information. I have 1 other quick question for you regarding inheritance. I received an inheritance during the marriage, opened a sole account in my name only and put the money there. We were only married for 4 years total and when we married he came into the marriage with nothing but a few personal belongings and furniture which he later sold. I owned a home solely when we married in 2002. In 2005 we moved to another house and I obtained the loan soley in my name due to his destroyed credit etc..and unfortunately was given incorrect information and his name is on the deed. The type of loan on the house is a no money down interest only ARM loan for the first 7 years of the loan, so the principal is not reducing. I have a first mortgage and then a second mortgage that is a home equity line of credit. Here's the deal: I paid off the 2nd mortgage in the amount of $36,200 from the inheritance funds. All of this can be traced back to where it came from, when the account was opened and the amount that went into the account, and the payoff check coming out of that same account to the mortgage company. Question: is he entitled to any of the equity in the home or is this considered separate due to it being paid with inheritance funds? I have gotten different information regarding this with gift to the marriage etc..but if it can be proved where it came from etc.. that it will/can still fall under the statute guidelines. Looking for some clear cut information for this situation as it will definitely make a difference when we go to mediation. Thanks in advance...

Marissa Gott



#4

Generally, once you pay an inheritance towards property that is jointly titled, it is considered a gift to the marriage. If you have paperwork which proves you did not intend to have his name on the deed, you can put on that evidence to try and rebut the presumption that you intended to make a gift to the marriage.

Helena M. Nevicosi
Attorney with Rosen Law Firm

4101 Lake Boone Trail, Suite 500
Raleigh, North Carolina 27607
919.787.6668 main phone
919.787.6361 main fax

Charlotte Office
301 McCullough Drive
Suite 510
Charlotte, NC 28262
Main Phone: (704)307.4600
Main Fax: (704) 9343.0044

Durham & Chapel Hill Office
1829 East Franklin Street
Building 600
Chapel Hill, NC 27514
(919) 321.0780

ROSEN.COM

The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service only, a full discussion with an attorney should be undertaken before taking any action. The information posted on this forum is available for public viewing and is not intended to create an attorney client relationship with any individual. These answers are provided for informational purposes only, a person should consult with their own individual legal counsel before taking any action that could affect their legal rights or obligations.


#5

So it would not be taken into consideration that he came into the marriage with nothing, never paid a dime of the mortgage payments, and only lived at the residence for 1 year and basically lived off me for the 4 years we were married and never maintained steady employment? Also, I have a minor child(not from this marriage) that resides with me and we live in the school district. Might I also add, the ex lives in California now and thinks he is going to be awarded the house! So, based on all of that, he will still get 50% of the equity in the house or I will have to sell it? Seems real fair to me. I have not been awarded the property yet but per my attorney there is a real good chance of me receiving it as well as being awarded an unequal distribution.
I don’t have any documentation that I can provide stating I did not intend for his name to go on the deed, although I did talk to my mortgage broker about this prior to moving and was told I could try to have him sign something, she told me every time she has presented clients with this form(don’t remember waht it’s called)it always ends up in divorce! Wish I would have done it now, could have saved myself alot of trouble. Again, I was given incorrect information from both the mortgage person and the attorney that did the closing as I was told that in the state of NC if you are married both names have to go on the deed even if loan is only in 1 person’s name. I found that out to be incorrect informantion when I attended a Rosen Law Firm informational session here in Charlotte last spring. That’s where he also talked about gift to the marriage, whereas when I consulted with an attorney in Union County was told that if it could all be traced back to where it came from etc…it can be considered separate per the statute. So, which is it??
Thanks again, I am more than frustrated at this point to have to give a dime to a worthless free-loader.

Marissa Gott


#6

Did you pay the 2nd mortgage before or after the date of seperation?

If you haven’t paid much on the principal with you ARM there wouldn’t be much equity to half with him. You don’t have to half the house, just the equity from the time of the marriage.


#7

Well, unfortunately I paid off the second mortgage prior to the separation and did not at the time consider this a quote “gift to the marriage”, rather since I knew I would more than likely be the one having to make 100% of the payments if they were ever going to be made, I looked at this as a way to reduce that monthly payment. There has been NO reduction in the principal on the loan since the date of separation, so does that mean he’s entitled to 1/2 of nothing? There is probably roughly about $28-30,000 equity in the home due to the fact I paid off the second mortgage.
Will wait to get some further definitive information from the attorney.
Thanks!

Marissa Gott


#8

Married in 2002, I purchased home in 1996…we refinanced in 2004 and beyond my better judgement I added him to the deed and loan…I don’t see that there is much equity in the home to-date from the refi in 2004.

If spouse is entitled to equity, have you ever seen any cases where property was damaged significantly by the absent spouse during the separation, therefore reducing the equity he could be entitled to or award me more of the marital property? Or is the no equity to split?

He came to the marriage with nothing but a living room set and drama. He messed up when he brought that woman in my bed and angry because I won’t get over it, which is when he destroyed my granite counter tops and brand new range…and came over when I wasn’t home and went under the house and sliced up all of the duct work and destroyed my furnace and a/c unit.

He’s crazy!!!


#9

Sorry to hear of your plight, property damage sounds worse in your case! Hopefully the attorney will respond to these questions soon for both of us. The law does not sound fair to me, especially when the other does not contribute, comes to the marriage with nothing, and basically lives of the other one…Swindlers are good at what they do I guess!
Good luck to you too…

Marissa Gott


#10

Thanks Marissa! I’m so stress out! He’s released from jail next month…divorce papers were served a few weeks ago to him. I’m concerned.

I can’t wait to hear Helena’s response.


#11

Helena, did you overlook this?


#12

mgott,

The situation you described is one that many people find themselves in. The issues you argued can be factors that justify an unequal distribution, but they are not automatic. The reason you are receiving what appears to be different opinions is because the attorney’s are answering different questions. If you jointly title the house it is considered a gift to the marriage. However, the fact that you purchased it with your separate property may be a justification for an unequal distribution. It sounds like you need a consultation with an attorney to review all the facts of your case.

Helena M. Nevicosi
Attorney with Rosen Law Firm

4101 Lake Boone Trail, Suite 500
Raleigh, North Carolina 27607
919.787.6668 main phone
919.787.6361 main fax

Charlotte Office
301 McCullough Drive
Suite 510
Charlotte, NC 28262
Main Phone: (704)307.4600
Main Fax: (704) 9343.0044

Durham & Chapel Hill Office
1829 East Franklin Street
Building 600
Chapel Hill, NC 27514
(919) 321.0780

ROSEN.COM

The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service only, a full discussion with an attorney should be undertaken before taking any action. The information posted on this forum is available for public viewing and is not intended to create an attorney client relationship with any individual. These answers are provided for informational purposes only, a person should consult with their own individual legal counsel before taking any action that could affect their legal rights or obligations.


#13

Thanks for the response to this. I do have an attorney and we have filed for an unequal distribution. I wasn’t asking different questions, I was asking someone to clarify the inheritance being separate property as it reads in the statute, then people were throwing in the “gift to the marriage” stuff and nowhere in the statute does it state anything about that regarding inheritance funds etc…
Again, if I had been given correct information from the mortgage people in the beginning, I wouldn’t be in this mess.
Thanks again!

Marissa Gott


#14

If judge awards me the marital property (loan in my name only, jointly titled) and orders ex to sign it over through the quit claim deed and ex doesn’t do so, is the court order enough to take to the deed office to have him removed so that I then have free and clear title to the property? This has not happened yet, but I do anticipate this in the very near future, and the ex now resides in California and has a pattern of non-compliance. Just trying to find out what the legal options are here if/when this occurs.
Thanks in advance.

Marissa Gott