Oh thank you so much for clarifying the procedure for me.
Do i have to send an actual copy of the receipt for mailing a copy of Answer to Plaintiff attorney and attach to the Certificate of Service or is the Certificate sufficient.
The certificate of service is sufficient. By signing the certificate of service, you are certifying and representing to the Court that you did indeed send a copy to the opposing party as stated in the certificate of service.
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.
Thanks ever so much.
I have filed my Answer to the Divorce Complaint. I want to prepare and submit to spouse’s attorney, a proposed settlement agreement. Question - Should the agreement still be called a “Separation Agreement and Property Settlement” even though he has filed his Complaint for Divorce and I filed my Answer to Divorce? I think somewhere I read that the divorce proceedings are separate from a Separation Agreement and Property Settlement and negotiations (if any) on the property settlement progresses until all issues are agreed upon. Second question - Re: Marital Residence - both names are on mortgage and deed of trust. Standard language in Settlement Agreement states that one or the other quitclaims their interest to the other party and other party agrees to pay the mortgage; however, legally, it is my understanding that if the party receiving the house and is paying the mortgage defaults the lender will still look to the other party for payment of the loan since their name is NOT removed from the mortgage just because they quit claimed their interest. So the only way to be removed from the mortgage is to either require the party receiving the house to refinance which will pay off the mortgage or the house be sold and the proceeds will pay off the mortgage. Is it ok to put this request (that in order to pay off the mortgage it is refinanced and/or house sold) under the Marital Residence portion of the Settlement Agreement and that I quitclaim only upon the above happening? Also there is only one joint debt which I would like to suggest be paid off as part of refinance and/or from proceeds of the sale. Would this be appropriate to put under Marital Residence or should it be put under Debts?
A settlement offer can be in any format. Even with a pending court case, you can still enter into a separation agreement and property settlement. Or you can enter into a consent court order. But to communicate an offer, even simple bullet points with the proposed terms works fine.
It is standard and commonplace to require the party keeping the marital residence to refinance within a certain time period (usually 90-120 days from the date of execution of the separation agreement or entry of the court order is sufficient) and that if this is not done by the expiration of the time period, then the house shall be immediately listed for sale. You can also include language that the party keeping the house will indemnify and hold the other harmless from and against all obligations relating to the marital residence and the mortgage that needs to be refinanced.
It is also standard to include that the party not keeping the marital residence will execute a quitclaim deed to the martial residence contemporaneously with the mortgage refinance closing or as directed by the other party’s new lender.
You are correct that regardless of what a separation agreement or court order states, if your spouse fails to make a payment on the mortgage, you are still responsible and the mortgage lender could still come after you for payment since your name is on the mortgage.
The joint debt to be paid from the house should be listed in both the marital residence section and the debts section.
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.
Is it correct that real estate property must be valued for purposes of ED as of date of separation?
Is it proper to use the “tax assessment” as the value of the property rather than the appraised market value?
If it is the appraised market value used, is an appraiser able to go back to a previous date to do an appraisal based on market value in a prior year?
All marital property must be valued as of the date of separation for purposes of equitable distribution, including real property.
The value is the fair market value, or the price that an asset could be sold for on the date of separation. Outside of court, the parties can agree to use the tax value for valuation purposes but generally the tax value is not the fair market value and so it’s not accurate to use the tax value.
The best way to get a value for real property is by a professional appraisal. The appraiser can value real property as of a date in the past, even in a prior year.
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.
Anna, 2 questions. It looks like my marital real estate has no equity as of DOS. All that is left is a credit card debt which exceeds the value of the furniture and furnishings in the house. How do you divide a debt? Since he has been in the house 5 years past the separation, he has had use of the house and furniture/furnishings during that time. I think it only fair that he take the credit card debt since the balance represents the majority of purchases for the furniture/furnishings? Second question, when I left the marital home, it was because I was in fear for my life so it was a sudden leaving of the home. I had to get a credit card (my name only) in order to survive, set up an apartments, etc. I would like to see if I can negotiate a reimbursement of those expenses? Does this sound reasonable?
Debt that is acquired during the marriage and for a marital purpose must be divided equally. Either the debt is distributed to one spouse and that value is deducted from the total asset value that that spouse is keeping or one spouse reimburses the other for one-half of the marital debt value.
In your case, if your husband is getting the benefit of the furniture (i.e. the furniture is being distributed to him and he is keeping it), then he should keep the corresponding debt.
You can attempt to negotiate a reimbursement for these expenses but since that debt was acquired after the date of separation, then it is your separate debt for which he would not be required to reimburse you, but could do so voluntarily.
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.
Thank you for the clarification. The appreciation of the real estate from DOS never is considered as an asset?
Any increase in equity after the date of separation is usually the separate property of the spouse that has been paying the monthly mortgage payments, which would not be subject to being divided in equitable distribution.
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.
It has been almost 3 months since I prepared and delivered information requested by spouse’s (plaintiff) attorney as to the property I wanted from the marital home. Attorney also said I needed to establish value and list of all marital property. I also prepared tables of increase in value of the marital home from date of purchase to DOS (May 2014) and then from DOS (May 2014) to current year and submitted all information requested to plaintiff’s attorney. I have heard nothing from plaintiff’s attorney since submitting the information. My theory is that the plaintiff has run out of money to pay his attorney and thus all work on this case has stopped. Do I have the ability as defendant to take some sort of action to help move this along? I have been representing myself so far and did answer his complaint and filed a counterclaim, at which time, plantiff’s attorney requested all the values and information as I stated above. Thanks.
To move your case along when you aren’t getting a response from the other side, you can schedule a court date for equitable distribution (check with your county’s local rules to see if there are other court dates you must calendar first, for example, pretrial conferences).
Once you have a court date on the calendar (which cannot be ignored by the other side), then you can propose scheduling a mediation session with a certified family financial mediator to take place before the court date. The idea is that the other party would participate in the mediation in good faith in order to avoid the upcoming court date. Mediation also tends to be very successful in resolving issues out of court.
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.
Anna, It has now been almost 6 months since I submitted my proposed settlement options to Plaintiff’s attorney and to date I have received nothing. I am unaware as to what courts are doing given the phase II status of our State. I did send a letter to Plaintiff’s attorney inquiring as to the status of the case and his client’s concerns regarding the proposed settlement over 2 weeks ago but he has not seen fit to respond. I suspect that my spouse (Plaintiff) may have run out of funds for attorney’s fees to proceed and/or was unable to secure refinancing for the house (if he even tried). How can this move forward? Would it be appropriate of me to suggest a zoom meeting to discuss the status and information I sent with his client? A sort of mediation of sorts to at least get some idea of what is going on? Or am I left with no other option than to file something with the Court? I have been separated now going on 6 years and really want to just bring this whole thing to closure.
If you are getting no response from the other side about your settlement offer, then you should send a letter to the lawyer threatening to file litigation if you don’t hear back by a certain deadline (2-3 weeks is reasonable). If you still do not get a response, then you will need to file in court against your spouse.
You can still file court actions like normal despite COVID. Court dates, calendaring, and how the hearings or trials will be heard before the judge will likely be operating under a different procedure due to COVID. Many court dates are being heard virtually by Webex.
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.