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North Carolina Divorce Law Divorce and Separation Answers
1

I recently initiated the process of seperation with my wife. There was marital fault on her part, but I understand that does not really affect the outcome of my ED question here now… We are still currently living in the same house, and here’s why. . .

We pretty much agree on everything, 50/50 physical and legal custody of our children, etc. because we have both been very active in their lives and day-to-day care. But the one thing we do not agree on is who should get the house. It is my desire to keep the home and continue to make the payments so that there is something that stays the same in my childrens’ lives. I want as little to change as possible, recognizing that much is going to change and that is unavoidable to a large degree. I have been the sole provider of income throughout most of the marriage, and I understand that in order to keep the house I must buy out my wife’s portion of the equity, which I believe at this point is around 16k - 18k- another appraisal is likely, and I’m fine with that- although the value is likely to drop given the economy (last appriasal was about a year ago). I have proposed taking on the car payment for the car she drives and paying that off… That loan has a balance right now of just shy of 24k, so in my mind she’s not getting a bad deal there. She is not in favor of this and wants to either “find a way” where she can be the one to remain in the home, or sell the home altogether (again given the economy, that’s likely to take forever). She is concerned how it will look to our children if she is the one to leave, and that no matter what we tell them that she is going to look bad to them for this, etc. I mean, I get what she is saying, and I sympathise, but I do not want to lose this house and have my children out of the only place they have known their entire lives (my oldest was 3 when we moved here, but still), and I would never speak badly of my kid’s mom to my kids, I wouldn’t do that to them, and I wouldn’t allow anyone else to either.

She believes that I can be made to pay for the mortgage, and be the one who has to move out. I do not believe this is fair considering I will have to then pay two mortgages (or 1 mortgage, one rent) and I would be completely unable to do that and take care of day care, other debts I will be taking on, etc. I have already filled in the NC child support calculator here, and it comes to $780 / month. I have not yet put in anything for child care expenses that I will most likely have to pay for, and that would, I believe, only lower my CS obligation payable to her… She thinks I could be forced to pay additional child support to make up the shortfall to make the mortgage payment (which is about $1,550 / month). I do not believe this is correct, but is there something to her position? I also worry that when she does get a job (she is seeking administrative / office type positions now I believe, until she finishes school in a few years), and we agree that she “give it a go” with taking on the mortgage here, that if she falls behind later that I will be put into a position to either help her out, or my kids lose their house at that point. I just feel I am in the better financial position to be able to live here, and I am willing to do it. It would be much easier for me financially to agree to sell the house, and go live in a cheaper house or apartment elsewhere (although the sale would take who knows how long, we need many repairs on the house before it’s going to be good enough to market), but I want to keep this house for my kids, not to make her look bad.

I have 100% proof of her infidelity, I have not pursued many options that I could have because I do not want this to be a nasty process, but I feel a bit like my good nature is being taken advantage of here. She has told me numerous times she “refuses to be the one to leave”… I have absolutely no desire to “screw” her out of anything or alienate her from our children… I just want to be seperated for the best benefit of everyone, but I do not want to be taken advantage of in the meantime.

I have said I will not agree to a written alimony requirement, given the marital fault. Nonetheless, I have offered to help her with a security deposit and maybe some money for a first month’s rent as I am able to help her get on her feet, but I cannot break myself in order to keep her afloat in this house… I believe with my CS and her income from a job, she should be able to afford a nice apartment or townhome somewhere real close by. I am extremely flexible in what I am willing to do to help her out because I know she’s concerned about what is going to happen, how things are going to get done, etc. so I do not feel I am being unreasonable here.

We are going to seek a collaborative divorce and try to seek an answer to this at the meeting hopefully later this week, but I would appreciate any legal opinions or personal experience that I can get in the meantime. I make decent money but I am not rich by any means, so I am nervous myself about how I am going to do some of this stuff and not fall too far behind myself.

Thanks for this forum, it’s an excellent resource.

2

You situation mirrors mine very closely. However, I had some advantages that you don’t. My Ex moved out of her own free will. My kids were old enough that custody was not an issue (I have it 100%).

As you have surmised the house is a major issue. As you have probably read here if you do not separate you can’t start the clock on the 1 year separation. You can’t file an ED claim till you do separate ( after 90 days I think).

You are on the right path to try to get an agreement. It is better than fighting. Seeking a collaborative divorce is great. But, it takes 2 people to agree. If she won’t agree then things devolve. I am not saying that is the way it has to be or will be. It is just such a tight rope. Very easy to fall off.

Your offers sound reasonable to me. So did the offers I gave my Ex. As it turned out she would have been much better off if she had taken them.

Trying to keep it from getting nasty is a very good thing. It is also very hard to do. Set a stake in the ground for yourself. Figure out what is the most important thing. Build your defense (or offense) around that. Be flexiable on other things. That is my best advice.

3

In addition to what don5327 posted, you should consider sitting the children down prior to anyone moving to discuss this with them. Depending on their ages and your ability to keep the discussion focused then the impact of her leaving the marital home could be lessened. If you two can sit down and let the children know what is going on, that she is moving out, but that you both are still going to be there for them, it may not look as bad on her. You do not have to bring up the marital fault…children do not need to know the details and they will not really be concerned with them if you show them that though it will be different, they are not “losing” one of you. Let them know the schedule that you have agreed on and show them that you can make 50/50 custody work. The only way this can work is for the parents to be able to work together, discuss things…raising your children together while separate. Of course, there will be other issues later on, but for the time being, this is the part that the children need to see.

The “extra” child support to suppliment the mortgage payment would be considered alimony and would not be given since there was marital fault on her part. Especially since you have proof. In my opinion, it sounds as though your stbx believes that there are no repercussions of her actions. It sounds, to me at least, that she is trying to use your desire not to disrupt your children’s lives as a way to gain more out of the ED than you are willing to give or that she has a right to…again, just my opinion…
You can offer to help her out as much as you are able if you desire to do that but it would not be required. It sounds as though you are being very fair in this situation where some would not be. It’s rare that everyone comes out good in a divorce, but the offers you’ve made are reasonable and even generous.

4

We have already told the children… This is the hardest part for me… seeing them upset about it and so unsure and looking to you for answers when really, you as a parent are just as unsure, but don’t want to let on to them that you are. At any rate, she contends it doesn’t matter what we tell them, it’s still going to look like she left to them… I get that to a point, I might even feel that way were the situations reversed, but I feel very strongly that I want to keep the house… so what am I to do? I am certainly not going to try and supplement her to the point where she can do it, but I would never tell them that mommy left because of any bad intentions towards them; and I would never tell them about the adultery… I think that would just be horrible for them.

I appreciate all the posts so far… I have read some of the other msgs here but now that it’s me in the situation, it gives you a whole new appreciation for the pain and stress that goes along with this process. I just wanted to know if my understanding of the law in this regard is close or not. She says she wants “something more” than my offer because of all her years of contributing to the house, my ability to work and bring home the money, etc. I have tried to tell her that that is what equitable distribution is intended to do, at least in my understanding of it, but she still contends it is “not fair” and she insists on more or she will not leave.

What’s not fair is that my and my childrens’ lives have to be disrupted at all… I started this process but I refuse to stay in a marriage where nothing is ever going to change, and ultimately everyone is going to be much better off in the long run; and I refuse to be told I’m the bad one for pushing it forward.

Thanks for the information and letting me rant :slight_smile: If anyone else has any information on this question, particularly any of the lawyers, I would appreciate it.

5

I think you are being really naive. If you are initiating separation then you had better be ready to pay. Fault doesn’t matter for Post Separation Support at all. All that matters is need. If you can’t agree, and she sues you, you’ll go to court. She’ll provide a financial affadavit on monthly costs, so will you, and the judge will award her enough money, likely enough so that your GROSS incomes every month are the same.

Fault may be a bar to permanent alimony, but you had better have rock-solid proof of an affair, and if you slept with her after finding out about the affair or showed you “forgave” her by continuing a marital relationship, then forget about the affair. I have rock solid proof and I still ended up paying PSS of more than $1600 a month and will until the permanent alimony trial.

This is pessimistic, but this is what could happen:
Phase 1: Let’s work it out.
Phase 2: Her: Oh, crap, I’m going to be really poor. I was a SAHM for many years. I don’t want to move out. What’s the law say?
Oh, I can get alimony as a SAHM for many years? Plus child support? And child support depends on how much time I have with the kids?-- gee, I had better get as much alimony and custody as possible, then! He is the one who wants to end the marriage, after all.
Oh, he has no track record of taking care of the kids full time, and I do? Then, I should say that I should get full custody for that reason, too! He isn’t a good parent, you see, and hasn’t shown interest in the kids like I have. In fact, here are some allegations I can make that will get me full temporary custody and will take months to untangle and require a parental investigator, etc.

You may think that it is fair that since she committed adultery that she should go out on her own and start her new life. That isn’t the way it works. Yes, she made a mistake, but you are ending it, and the court’s don’t give a hoot about who was the better spouse. They aren’t about to let you walk away from supporting her financially.

My real advice? You have no idea how ugly this can get. Spend $20,000 on rediscovering your marriage. Go to marital therapy. Go away to workshops. Hire babysitters galore. Go on vacations. Have a great time together. Get someone to clean your house and do your lawn. You are going to be lonely as can be without your kids 1/2 of the time.

If you make a decent income and she was a SAHM and has no professional job skills, you are really up a creek. Bet you didn’t know that when ya’ll agreed that she would stay home.

Getting divorced is not worth it. But, she has to want to repair the marriage. Good luck.

6

If the collaborative process fails and your spouse refuses to leave the residence, you may attempt to remove her through an action for Divorce from Bed and Board. There is no guarantee that this will be successful, but the judge may order a separation and expel her from the home.

Quixote is partially correct in that there is technically no bar in the statutes to an award of post separation support despite adultery, but many judges read the statutes to actually bar post separation support in the event of adultery by the dependent spouse.

Alimony is absolutely barred by adultery. If you “condoned” or “forgave” the behavior and had sex with your spouse, the court may remove the bar to alimony, but typically that is if the condonation occurred over a relatively long period of time. If she is still engaging in the adultery, the bar still stands.

As far as equitable distribution, the presumption is that the property will be divided 50/50 between the parties. She would have to allege factors for an unequal distribution.

Give the collaborative process your best effort, as if you can reach an agreement (which may not coincide with what a court would do), typically you will be better suited to move forward in rebuilding your life.

7

[quote=“Ketan Soni”]
Quixote is partially correct in that there is technically no bar in the statutes to an award of post separation support despite adultery, but many judges read the statutes to actually bar post separation support in the event of adultery by the dependent spouse. [/quote]

My personal experience in Orange County at the PSS hearing was that the judge looked at the love emails between my STBX and the paramour, saw the PI photos of them going into the hotel, and other overwhelming evidence and made a finding of fact that my STBX did not commit adultery based on her testimony alone, and awarded her PSS. I did not get to testify in the PSS hearing. No, it doesn’t make sense, but a judge does not have to. My lawyer says the judge got it wrong- too bad for me. Frankly, I think he decided that I could afford PSS, didn’t care about adultery, so he used his discretion. Too bad for me.

Bear in mind that she was leaving me, her parents have bought her a house, and she has decided not to work though she has a professional degree.

[quote=“Ketan Soni”]
Alimony is absolutely barred by adultery. If you “condoned” or “forgave” the behavior and had sex with your spouse, the court may remove the bar to alimony, but typically that is if the condonation occurred over a relatively long period of time. If she is still engaging in the adultery, the bar still stands. [/quote]
I have only my experience, but from what I’ve read, this depends a lot on the judge. You are totally taking a chance.

8

Wow Quixote. . .

I don’t believe I ever said I was looking to “walk away from supporting her financially”- I will help her get on her feet, and I’m doing that now… But no, beyond child support (which is for my children) I don’t feel I owe her any supplements to boost her lifestyle, given the multiple incidents of cheating… Yes I offered to do counseling in the past and she consistently refused to do so. Given the extensive documentation I have throughout this process, I feel comfortable that I could successfully fight this if I wanted to. Do I want to? No- I (and she) want it done as quickly and amicably as possible.

I take care of the kids constantly, it’s widely known and documented… We do not want to fight on custody for the sake of the children, so this is not an issue.

This is not about punishing anyone, If I wanted to do that I would have filed a B&B divorce complaint long before now. I just want out…

I’m sorry your situation turned out so poorly for you… But I have done all I can and plan to as far as trying to save my marriage… I deserve better than a spouse who cannot remain faithful despite numerous chances to do so, my children deserve better than to have to live in an “indifferent at best, hostile at worst” home environment. Believe it or not, overall, since I made the decision to seperate, and she accepted I was not going to change my mind, things have actually been better… we both know an end is coming, and that it is the best for everyone.