E/d and gift and other questions


#1

It sounds as though you have a case similar to my husband’s when he and his ex split. His attorney filed for Divorce from Bed & Board, temporary custody, equitable distribution and child support all at the same time. It was the custody they had to go to mediation for, but their final agreement was all rolled into one order, with the exception of absolute divorce which has nothing to do with anything other than one year and one day separation.
Mediation is required before custody can be decided. My husband and his ex basically only agreed to the holiday visitations during mediation but nothing else. It is about child custody, not divorce.

I don’t believe that he is entitled to the car that was given to you as a gift, unless it was gifted to both of you.
The home purchased after your marriage by law has to have you both on the deed and is considered marital property. This must be divided, but if there is no equity in the home then there is nothing to split. The other car, if purchased after you were married is considered marital property also and that would be why he is entitled to use of it. Have your attorney ask the judge to put a time restriction on having that car refinanced out of your name. If he is going to be driving it have a stipulation that if it is not refinanced in a certain amount of time it will be sold and any profit will be divided as part of the marital assets.

Him not working while you were married would entitle him to alimony from you except for the fact that he admitted to you that he committed adultery in which he gives up his claim to alimony.

Divorce from bed and board is used by one spouse so that the other spouse will be forced to move from the marital home. In your case, it’s because of your husband’s infidelity. Basically means that you two are no longer responsible for providing for each other finacially or physically. If he has already moved from the home and you are not providing for him finacially then this is sort of after the fact.
Hope this helps! Good luck


#2

Thanks you for answering my post.

My case is not at all normal. My husband worked up until we go married, and then every job he would get would “fall through”… Since then we have had two children whom I have been the sole provider for. My husband has a long history of stepping outside our marriage, but this time he was cuaght red handed. All the other times I could never “prove” it. So he would tell me that he didnt have to leave the house.

I have a 50-B out on him right now for harrassment, and stalking. That is set to expire on march 30, 2007. I’m just afraid that since my Devorice from bed and board was not heard yesterday, like it should have been. ( I’m not sure why it wasnt)… Can he legally walk right back into my house after march 30 when the 50-b runs out. I’m just really confusded about all this. I almost feel like he is being rewarded for ruining our marraige. Any suggestions that anyone can give would help me sleep at night!

I’m afraid that I’m going to loose my house, all its contents, and I’m the one who worked for all these things… He can take from me when I have custody of the kids can he?


#3

Legally he is entitled to 1/2 the marital assets and debts. There’s really not much way around all that.
I don’t know much about hearing the divorce from bed & board because in my husband’s situation his ex settled rather than go back to court after the prelim hearing. Maybe someone else has an answer on this…

Since you are separated, legally he can not come back to the home unless invited. If he does come back to the home, he can be asked to leave and/or removed by the police as domestic tresspass. The same is true for you and where he is living. Change the locks and make sure that the neighbors, if any, are aware that they are to notify you and the police if he is seen on your property.

When the equitable distribution is heard you should be given X amount of time to arrange him access for the items that he is to get. Like, “husband has 30 days to retrieve items (listed) and personal belongings and to arrange for removal of said items from the marital home.” My suggestion is that you find out what he wants out of the home, figure out which items are worth arguing over in court, send your STBX a letter of intent to remove those items from the home by a certain date and what you are doing with them well in advance of the March 30th deadline. Rent a storage building for one month, move those items that you are willing to give him into that building with a lock. Tell the storage facility that you will only be paying for that month alone and that further payment should be gotten from him. This way, he has no reason to return to the marital home.
Get an equitable distribution agreement drawn up stating the deal with the car, what possessions he already has taken from the home, his clothing and personal items, anything else that you want him to have and this is really terrible, (in most situations I would not recommend this to anyone) but you could always be sneaky…tell him that if he doesn’t sign the agreement, then you will have your attorney seek charges against him for criminal conversation (act of sex with someone other than your spouse) or adultery. It’s a misdemeanor and is rarely prosecuted but yet it is still illegal in NC. You could also state that you are considering suing the other party involved for alienation of affection…it doesn’t matter that you are not going to do any of this if it gets you what you want.
What you have to keep in mind is that since he admitted to an affair, or was caught, you have the upper hand in most of this.
This is why most men, and women, who have been caught in affairs end up “starting over” with nothing while their spouse gets everything…

I will only say this about the child/children: Just because your STBX cheated on you does not mean that he should not be involved in the lives of his child(ren). Do not put the child or children in the middle of this because they will not understand. That is their father and they have the right to love him regardless of what he has done to you. If he is a lousy father or abusive towards them then that is a different scenario all together but otherwise, you should try to work with him as much as possible to raise your children separately.


#4

Stepmom,

Wow you really seem to know what your talking about! Thanks for the great advice. I just think that its really crappy that a man/woman can do these things and are still “entitled”. It makes my skin crawl. I do know that i owe more on my house than what it is worth, so best of luck to him with that. Furthermore if he comes out of all this with that one car he should consider himself lucky. As far as the kids go I understand what you are saying. I just wish that he would grow up. After we separated he filed a claim with out local DSS saying that my daughter was being sexauly abused while in my care. He is just such and A$$! He then sent me this letter stating that if I didnt negotionate with him, or respond to him that he was going to turn my into the IRS saying that I falsified my income tax returns. He knows better but he is just trying to cause problems. I just wish that he would quit with all the harsh acts against me. I have done nothing to this man, but kick him out after I found him cheating on me.

I get e-mails everyday telling me that I have changed my password, or e-mail address. He has turned off my cable, locked out my phone account, and stole my w-2 out of my mail box. I just hope that the judge will see this man for what he really is. My babies are all that are important to me, and I want there father to be active in there life, but its hard to be reasonable with a man who enters every new day thinking of ways to make my life miserable. I’m trying to be the bigger person, but he is making that really hard to do.

He says that he wants joint custody, and I have a problem with that because he dose not have a home or place of his own. He has stayed with 4 families since we separted in Jan. I mean this man can’t even find a stable place of his own to live in. But he expects me to just let him take our children where ever. I have no idea who he is styaig with, what type of people they are, ect… Thats why we couldn’t aggree in court yesterday, and the judge recommended mediation. But i just dont see that as getting us anywhere. I’m just scarded for my kids, and were they my end up.

So even though he has committed adulty and I have other witnesses who can say that they seen him do inappropraite things with other people, that wont get me anywhere? I just think thats wrong.

Thanks for talking to me about all this. I really do appriacte all the feed back.


#5

You need to contact the phone, cable, and power companies and take his name off the accounts. If any of these are in his name, have it changed. Let them know that he no longer lives at that address and ask that he be prohibited from manipulating the accounts.
If he’s threatening to turn you into the IRS, keep in mind that you two were married and that would be just as much his responsibility to make sure the tax forms are correct as yours, even if he hasn’t worked.
I would suggest that in mediation, tell them that you would agree to joint custody IF he can provide an address that is in his name and can be verified. You’re right, you can’t raise children if you are staying with other families and hopefully that is a temporary thing. As far as the rest of it goes, calm down and let him rant, rave, accuse, run around and cause problems. Do NOT waste your time and energy trying to put out fires that are not a danger to you. He got caught and he’s trying to make himself look better by making you look bad. This never works and most people who know you will see this. Do not go into court trying to make him look bad, let him do that himself. Do not talk about this around the children and unless they have specific questions, do not talk to them about it.
My husband’s ex told their children everything and even let them read the court papers. Let me tell you that at 6 or 9 years old, the only thing they understood, I hope, was that Daddy said horrible stuff about Mommy. The sad part is that it was all true. She thought she would get the children on her side and make them want to live with her so she would get custody. My husband only told the children that he would explain things when they got older and that this was something he was doing for them. If they had specific questions, he answered the best he could without being ugly about their mom.
Focus on what you need to do right now, protect yourself and your children finacially, and take care of yourself and your children emotionally.


#6

You ar so right. I just ready to be adults about this, and make things work as best as i can for the sake of our two little ones. i just hope that he doesnt try anythign crazy. Like try to go after full custody. I mean I have been there sole provider since they were born. They have both lived all there lives in my/our home. I have arragned all the child care, and have just tried my best to go on with me life.

I just would really like to see him make something of himself. I dont have any ill-will towards him. I just want him to move on. It just seems like he has just spent every waking moment trying to make my life hard, when he is the one who caused all this in the first place. I just dont understand his mantality.

I guess I will let him pay his lawyer to fight me with E/D. I own more on my house then whats its worth, I will have full custody of the kids with him having visitation, so I dont think that he will be able to take anything from me. The only thing it looks like he is going to get out of this whoel deal in the other car that I had. I’m not going to bother paying my attonrey for E/D. I will let him do that if thats what he wants to do, and then pay my attorney to “answer” the complaint.

I feel better after talking to you. thanks so much. Maybe in some wierd way even though NC is a no fault state, things seem to work out the way there supposed to.

I just hope that I come out of this ok.


#7

Dear metoyou:

Greetings. No, he does not have any rights to the car that is your separate property - ie. the gift from your relative.

If you purchased the home after marriage, it does not matter who made the payment, since all income is marital regardless of who earned it.

Adultery does not affect the fact that he is entitled to half of all marital property - adultery does not affect equitable distribution generally.

I have no idea if you had a hearing on the issue of divorce from bed and board or not, so I cannot answer your last question. Thanks

Janet L. Fritts
Attorney with Rosen Law Firm

4101 Lake Boone Trail, Suite 500
Raleigh, North Carolina 27607
919.787.6668 main phone
919.256.1665 direct fax

301 McCullough Drive Suite 510
Charlotte, North Carolina 28262
704.644.2831 main voice
704.307.4595 main fax

1829 East Franklin Street, Bldg 600
Chapel Hill, NC 27514
919.321.0780 main phone
919.787.6668 main fax

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 but a full discussion with an attorney should be undertaken before taking any action.


#8

Janet, I really have a question about the car issue. My husband purchased his Jeep while he was married to his wife - in his name only, with his money (she did not work.) Her name was not on the title or on any of the payment paperwork. In the divorce, she was given that Jeep which he had paid for in full, and he was allowed to keep the other car, also purchased in his name only, and which he still was paying the car note for. So, in his case, the judge sure did give her something that was legally and fully his!
Maybe because it was purchased inside the marriage, despite the fact that she made no financial contribution??


#9

Dear ivyalmighty:

Anything that was purchased during the marriage is marital (unless purchased with separate funds) regardless of how it is titled. Hope that helps…

Janet L. Fritts
Attorney with Rosen Law Firm

4101 Lake Boone Trail, Suite 500
Raleigh, North Carolina 27607
919.787.6668 main phone
919.256.1665 direct fax

301 McCullough Drive Suite 510
Charlotte, North Carolina 28262
704.644.2831 main voice
704.307.4595 main fax

1829 East Franklin Street, Bldg 600
Chapel Hill, NC 27514
919.321.0780 main phone
919.787.6668 main fax

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 but a full discussion with an attorney should be undertaken before taking any action.


#10

My husband and I are seeking separation. We separted in Jan on this year. We had are first court hearing yesterday, were the judge recommened that we go through mediation before he makes the decision. At that time there was a “temporary judgement” done. Basically that he will have to pay me x-amount of child support, and that he gets USE of one of my vehicles. I have two vehicles. One that I still owe money on and another that my relative gave to me as a christmas present 2 years earlier. The car that was given to me as a gift is the better of the two car’s. Does he have any rights to that car if it was given to me as a gift?

Also the home that I purchased in 2001 was purchased after we were married. My husband has never made one payement on it, and I owe more on the house than what its worth. Can he fight me for the house? also he never worked during the course of out marriage. He always said that he was looking for a job, but could never find one. After I kicked him out he was able to find a job. Isn’t that amazing?

He commited adulty in my home in Jan on this year. he has admitted to it, is he really entitled to anything? I thought that it was terrible that the court allowed him use of my car. I still owe on it. How can he be allowed to drive a car that I still have to pay for? Also in my complaint was a divorce from bed and board… I never heard anything about that yesterday at my hearing… Well that go into effact after mediation?