ED Distribution of Real Property Proceeds AFTER Divorce

North Carolina Divorce Law Divorce and Separation Answers
1

What happens if…

I file for absolute divorce and child custody, but I do not submit a separate filing for equitable distribution.

The only maritial property is a vacant house, which is deeded and mortgaged in both names.

My ex will not cooperate and will not agree to anything, just to be difficult. One day she agrees to file a friendly complaint, we discuss and agree upon the details, I pay to have the complaint rewritten, and then she requests more changes… which I agree to, pay to have drafted, and then the cycle repeats itself. She refuses to sign anything. I have spent thousands trying to get this resolved, and am very frustrated. Our house sits vacant, but she will not agree on an agent to list it. She will not help to pay the mortgage payments or the utilitiy bills.

On the flip side, she is VERY eager to finalize the divorce.

She wants “her half” of my retirement, as I’ve heard over and over. But I can prove that the money in the account was deposited PRIOR to our marriage. She refuses to get an attorney, and so all of her legal advice has come from friends and co-workers.

I’d like the burden to be on her to submit her own filing for equitable distribution. I believe that if I file, and when she receives the complaint and civil summons, that she will fail to respond. My understanding is that if she fails to respond, that the jude will grant the divorce. Is that correct?

Then, we’re still left with the house.

Once the divorce is finalized, am I able to file a motion to compel my ex to list and sell the house?

She refuses to agree to an agent, a listing price, a sales price, preparing it for sale, paying the mortgave. She refuses to do anything.

What should I do? I’m out of money, and want to finalize this divorce.

2

You will want to file for equitable distribution to have the marital home taken care of and to settle the dispute about the retirement. That’s why you file in court for that, if the couple can not sort out and distribute the assets. You do not have to have this settled prior to the absolute divorce being granted, it only has to be filed for prior so that you do not lose your rights to any marital assets. If you file for absolute divorce without an ED claim, the judge will likely mention it before granting the divorce.
If she does not respond to the absolute divorce complaint then the divorce can still be granted after 30 days. You will likely have to go before the judge and state the facts of the matter to have it granted but that is a small price to pay to have it finished.

It sounds to me as though she knows that you are paying every time there is a new draft and is waiting you out. Or even if she doesn’t know you are paying every time, she’s figuring that eventually you will run out of money or patience and be willing to give her whatever she wants to have it done. If you’ve made every change that she’s asked for, then why wouldn’t she ask for more…? What do you think would be the response if just once you refused to change something? My husband’s attorney did this to his ex. He would send the papers back to her attorney without the requested changes made because she was paying every time she had an appointment with her attorney. My husband didn’t know that part, but the attorneys know if the papers go back and forth often enough, eventually someone will get tired of it and do something different…
My suggestion is to have your attorney write a letter stating that this is the last draft. If agreement can not be made and the agreement signed then the client (you) have no other choice but to let the courts decide. You will have to decide what is worth going to court over. Make sure you read over anything for changes before YOU sign it too. If she’s requested a change that you agreed to but do not think that will be as comfortable for you in 5 years…have it changed back to what you will agree to. Do NOT sign anything you are not comfortable with. Do NOT sign and plan on changing stuff later…that can’t happen without a LOT more money, effort and stress on your part.

Custody can be filed for at any point in time, prior to divorce/during separation, after divorce, 5 years down the road as long as the children have not aged out. It is filed separately from absolute divorce though I think it can be in conjuction with ED, support.

3

You are correct about the situation. She knows that she’s wasting my money, and she will not sign anything. My attorney already tried the “last draft” threat, and she refused to sign it.

I guess my question is then, is: How does filing an ED claim benefit me? Once the divorce is granted, then there can be no claims on my retirement. If she chooses not to respond, and makes no objections upon receiving the complaint and summons (as I suspect she won’t), then the divorce would be granted regardless, correct?

At that point, my retirement is no longer a point of debate. That just leaves me dealing with the vacant house.

What am I missing?

4

Oh, and at this point I’m in a different county, so I will need to retain a new attorney.

5

You need to amend your complaint to include Equitable Distribution, or file a motion in the cause for the same. The divorce process will continue through the system and once the divorce judgment is entered you lose your rights to have the home dealt with via equitable distribution. Once your ED claim is pending you may file a motion for interim distribution and have the house put on the market.
You cannot risk counting on her to file the claim for ED, to protect yourself you must do this immediately.

6

Hi Erin,

Thank you so much for your help so far. Please forgive me for being slow to understand this concept.

Once the divorce ordered without an Equitable Distribution claim, then my STBX cannot go after my retirement, correct?

It seems that I am putting myself at risk by filing for ED, since she will then try to “get even”. I’m having trouble understanding how filing for ED is a benefit to me. It almost seems like it’s making it easy for her to ask for things she hasn’t yet considered.

7

Once the divorce is granted your spouse cannot file for ED. If she does not file before then she cannot claim rights to your retirement, however you also lose here. By not having the martial property subject to distribution you will not be able to have the house placed on the market as part of this action.

8

By filing for ED you will have the vacant house issue brought before the court. If you have proof that the money was in the account prior to marriage then the only thing you would owe her 1/2 of is the amount that accumulated during the marriage. Say you had $15,000 in retirement prior to marriage; during the marriage you added another $5,000 to that, then you would only owe her $2,500 in the ED. It would be whatever the amount was on the date of separation. The same is true of any retirement or savings she may have. It is legally 1/2 yours. If the home and the retirement are the only two assets you have that still need to be divided, then you would be better off filing and having the courts order the home to be sold and showing the courts that the retirement amount she would request is not a valid request. In the ED you can offer 1/2 the amount that was added during the marriage and make sure she understands that this is all she is legally entitled to.