Dependent Adult Child in College

Spouse and I separated 5 years ago when he threatened my life. During the hearing on a 50B I was asked if I wanted to live in the marital home. I said no because that is where he would know to find me. He has been residing in the home ever since. I do not want the home and I don’t want to be on a mortgage for a home I do not own (assuming I give him my 1/2 interest in the home). He refuses to refinance which is the only way I see of me being released from the mortgage obligation. Spouse is a Veteran and the loan a va acquired loan. If I give him a quit claim deed to my interest in the house the bank will still look to me if he defaults. Would it be more wise for me to ask for an amount of money as distributive property?

If he is being uncooperative, you should file an equitable distribution claim in court so the court can divide the marital property.

If your husband is going to keep the home, he needs to buy you out of your one-half interest in the marital value. You are correct that you cannot be removed from the mortgage unless he refinances. A court order can require and force him to refinance and pay you for your one-half interest. It would not be wise to sign a deed to the house until you have a binding agreement or court order setting forth the terms of the division of house and mortgage.


Anna Ayscue

Attorney with Rosen Law Firm Cary • Chapel Hill • Durham • Raleigh • Wake Forest

Rosen Online | Unlimited confidential access to a North Carolina attorney for $199/mo - click here

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.

So what you are saying is i should answer his complaint denying he is entitled to more than 50/50 which is what his complaint states. Do i need to file anything else other than answer? I proposed several ways he can refinance etc. Via letter so what he wants can be the basis of a settlement agreement but not sure his attorney will respond. So i file my answer and then what,? His attorney may still negotiate separation agreement after he knows what my answer to complaint says prior to court hearing? Or is he just wanting everything to be decidef via court? Can i call his attorney and ask for a mediation meeting prior to filing my answer? Can a pastor/counselor act as a mediator? But then it would be just me the counselor and my spouse, would that be wise ?

If you do not believe he is entitled to more than a 50/50 division of the marital property, yes, you should deny the allegation in his complaint that states he is entitled to an unequal division in his favor.

There are statutory distribution factors that must apply before one spouse can receive an unequal division of the marital property.

You should also file your own counterclaim(s) along with your answer, for example, your own counterclaim for equitable distribution.

It is still possible to negotiate a settlement before and after you file your answer and counterclaims and even if there is a court date on the court docket.

Yes, you can ask his attorney for an agreement to attend a mediation session. In many counties, local rules require the parties to attend a mediation session before there is a trial in court.

A pastor or counselor should not be the mediator for financial marital issues that are subject to litigation. A certified family financial mediator is the best option.


Anna Ayscue

Attorney with Rosen Law Firm Cary • Chapel Hill • Durham • Raleigh • Wake Forest

Rosen Online | Unlimited confidential access to a North Carolina attorney for $199/mo - click here

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.

From your response I am assuming that an Answer to Complaint and Counter Claim for Equitable Distribution is one document. Is there a filing fee for this?

Yes, an answer and counterclaim are two different things but they are routinely combined into one document. There is a filing fee for counterclaims, which is $150 (the same as a filing fee for a complaint).


Anna Ayscue

Attorney with Rosen Law Firm Cary • Chapel Hill • Durham • Raleigh • Wake Forest

Rosen Online | Unlimited confidential access to a North Carolina attorney for $199/mo - click here

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.

Typically in assessing 50/50 or when one party is asking for more than equitable (50/50) as is the case in my situation, is the amount of time one party or the other physically resides in the house taken into account? In my case, I was in the house for approximately 2 and 1/2 years before I had to flee the house for safety (because he threatened to kill me). During those 2 1/2 years spouse left the marital home for approximate 1 1/2 of those 2 1/2 years. He has resided in the home after he threatened me and I left and obtained a 50B against him in 2014. It seems from what I read, that the facts surrounding why I am no longer residing in the home (if that matters in order to claim 50/50 or in his case he is claiming entitlement to more) will not or should not be mentioned in the Answer or Counterclaim? The irony in all of this is that I do not want the house and my primary goal is to have my name removed from the mortgage and for him to take responsibility for the one joint credit card that represents the furniture and fixtures which are in the house. The credit card balance has been charged off with the bank and is in collection status.

The length of time that one spouse was in the marital residence is not a factor used to determine an unequal distribution of the marital property.

Your answer and your counterclaim does not have to be detailed. Your answer only needs to admit or deny each of the allegations/paragraphs in the Plaintiff’s complaint. Your counterclaim only needs to give enough information so that the Plaintiff knows and understands what you are suing him for. All other details can be reserved for negotiations, mediation, and/or trial.


Anna Ayscue

Attorney with Rosen Law Firm Cary • Chapel Hill • Durham • Raleigh • Wake Forest

Rosen Online | Unlimited confidential access to a North Carolina attorney for $199/mo - click here

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.

In this instance, I want the mortgage refinanced with a cash out option for equity in the home. The result would be that the existing mortgage would be paid in full (in essence removing my name) and the balance of the joint credit card would be paid off in full using the cash out option at refinancing. The new mortgage would be in his name alone and I would have no problem giving him my 1/2 interest in the home if the above was satisfied. I also received a Stipulation from the Plaintiff’s attorney for an extension of time to file my Answer to Divorce Complaint extending the deadline to Nov. 15. My original filing deadline was Oct 13 but that is a Sunday and not sure if Court is open on Columbus Day, Mon. Oct 14. Plaintiff’s attorney has apparently given me 30 more days to Nov. 15 but I thought you could only have an additional 20 days for an extension? Your responses have been invaluable and a blessing to this single mom. Generally speaking, are attorneys allowed (assuming they are willing) to look over a draft of something like an Answer to Complaint for Divorce and Equitable Distribution prepared by a person representing themselves for a flat one time fee per document?

When extensions for time to answer complaints or counterclaims are granted, they are for 30 days.

Columbus Day is not a State holiday, so the courthouse and clerk’s office will be open. If a deadline to respond falls on a weekend or State holiday, the deadline is automatically extended to the next business day.

You can have a consultation with an attorney who can look at your documents.


Anna Ayscue

Attorney with Rosen Law Firm Cary • Chapel Hill • Durham • Raleigh • Wake Forest

Rosen Online | Unlimited confidential access to a North Carolina attorney for $199/mo - click here

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.

I did receive a Stipulation signed by the Plaintiff’s attorney granting an extension to Nov. 15th in this Divorce matter. I received a copy from him via email. My original deadline was to be October 14th. I am assuming this is all that needs to be done regarding the extension? Is the attorney’s plaintiff required to file that with the Court? How can I be sure he does? What if he doesn’t file it with the Court and my October 14th deadline comes and goes will the Court automatically grant the Plainitff’s requests in the Divorce Complaint since I have not filed my answer and counterclaim yet now that I have an extension. Not sure how to structure my Counterclaim. I know what I want to happen but not sure I am legally within my rights to do so. At this point, spouse has not made any attempts to refinance mortgage nor make payments on the one joint credit card during the past 5 years of separation. Am I within my rights legally to counterclaim and request that based on failure of plaintiff to secure refinancing or pay off or make payments on joint credit card account that he be given a certain amount of time to vacate the home, the house be placed on the market for sale with the proceeds of the sale after closing costs, real estate commission, and joint credit card paid off be divided equally. Or do I just request in general Plaintiff be responsible for joint credit card debt (used to purchase all furniture and furnishings in the home) and the house sold with equal distribution of the net proceeds; in other words how specific do I have to get with the wording in the countercomplaint? I guess what I am trying to ask is what, in the countercomplaint, am I actually trying to sue Plaintiff (spouse) for in legal terminology based on what I have detailed above that I want to ultimately happen. In over my head I think. Thanks.

If the extension is granting you additional time to answer, you should be the one to file the stipulation. If the stipulation for an extension of time is not filed in advance of the original due date, then plaintiff can set the absolute divorce matter for a hearing date since the time to answer and respond to the complaint has passed.

Your ideas for the house and debt are valid ways to resolve those issues. However, this does not need to be detailed in the counterclaim. These are equitable distribution issues and you simply need to make a claim for equitable distribution. Then, after you’ve filed your counterclaim for equitable distribution, you can send your request as a settlement offer to the other side.

You can use our Sample Court Complaint as a guide to draft your counterclaims. While this is a complaint, the wording and language is the same for counterclaims but your document title is different and you’ll need to be careful that you’re using the distinctions of Plaintiff and Defendant correctly to appropriately apply to your situation.


Anna Ayscue

Attorney with Rosen Law Firm Cary • Chapel Hill • Durham • Raleigh • Wake Forest

Rosen Online | Unlimited confidential access to a North Carolina attorney for $199/mo - click here

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.

So if i do an Answer to Complaint and a counterclaim all in one document, do i flip plaintiff and defendant terms in my counterclaim? Spouses’s attorney offered to prepare the Stipulation granting defendant (me) til 11/15. Does he have to file the original with the court? How do i know if he does file it if he is required to file? I called spouses attorney in response to my proposed letter of possible settlement options and was told that because he had not had time tomorrow look over the options yet he would just prepare a stipulation to extend time to answer which he did. Should i be concerned that he might just not file the stipulation and get the divorce pushed through if i dont answer by the original due date which is Monday 10/14?

If the plaintiff’s attorney prepared and signed a stipulation for an extension of time and sent it to you, then you would need to sign it and be responsible for filing it. A stipulation cannot be filed with only one side’s signature/consent. You can call the attorney’s office, call the clerk’s office, or go to the clerk’s office and pull the court file to see if the plaintiff’s attorney already filed it, but I highly doubt this is the case unless you and the plaintiff’s attorney had already signed the stipulation.

You will always remain the defendant. If you are using Rosen’s sample court complaint as a guide to draft your counterclaim, you will want to make sure the beginning states that the Defendant is complaining of Plaintiff since you are the one making the claims.


Anna Ayscue

Attorney with Rosen Law Firm Cary • Chapel Hill • Durham • Raleigh • Wake Forest

Rosen Online | Unlimited confidential access to a North Carolina attorney for $199/mo - click here

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.

I have looked at your counterclaim form and have a couple of questions. When you counterclaim, does the item need to be written in such a way so plaintiff has to admit or deny the facts in that item? Or can my items be what relief i want as in house sold and priceeds divided or do i stick to just sort of generically say equitable distribution with no specifics? I.only have one jt credit card (acquired to purchase household furniture and fixtures), the house jt mortgage jt on deed, want him to pay all attorney and court costs for himself and reimburse me my fees and costs and i do want the absolute divorce pending settlement of debts and assets.