ED Questions, I'm confused


#1

FYI - In researching these same things myself, I found that neither equitable distribution nor custody have to be completely settled before final divorce, but it does have to be filed. In other words, after final divorce, you can’t go back and get anything if negotiations aren’t already started on it.


#2

Thanks Stepmother, I guess thats my point. It was my understanding that negotiations had been held and both parties agreed (the Consent Order). Do these things EVER really go away?


#3

Oh there’s an end to it, believe me. It just takes patience and picking your battles. If the process gets drawn out long enough, most sensible people will just give in to make an end to it.
How did her attorney get an order voided over a year later, right before your divorce without your attorney at the very least getting a notice that ED needed to be renegotiated? It doesn’t take that long to file a motion to extend. Glad you kept records.

My husband’s ex tried to have their separation agreement which had all the ED, and custody arrangements voided after he and I met, and she found out he was dating. She tried to say that at the time of signing the separation agreement she was unaware of the implications of what she was signing due to extreme depression. I will not argue that the woman has some mental issues and 6 months prior to her leaving him, she was prescribed a medication for bipolar disorder. BUT, she never took the medication, and never went back for a follow up appointment. She had read over the papers twice and even called him to point out an error where he left off a piece of land they owned. Three weeks after signing she has elective surgery for a tubal ligation, because she had become sexually active and my husband suggested that she may need to consider using some form of reliable birth control. Now, you tell me, someone who is able to make those types of decisions about a major surgery, and able to understand the papers well enough to realize that there were errors, is this person able to comprehend what they are reading well enough to realize that she isn’t going to get the living room rug? Her attorney filed a motion to have the ED renegotiated on those grounds and my husband was served. After we did some research and turned this over to his attorney, she basically didn’t have a case. She still ended up getting more items, but that was only because by that point he didn’t care anymore. She even asked for items after the final agreement was signed by the judge. I told him that if he gave in this week over the rocking chairs, because he just wanted her to leave him alone then next week it would be a lamp out of one of the kid’s rooms or something else.

Check out the main site here under division of property about the division of marital property: “Property” includes both assets and debts." If she and her attorney are opening up renegotiations of the marital property then I would say, “All’s fair in love and war”. Hang in there.


#4

Interesting. At least now I know I’m not the only one dealing with a “kook”.

Thanks!!


#5

Dear Harleydad:

Greetings. If you or she filed a claim for equitable distribution, even if the consent order was later set aside, then the claim survives divorce. I hope that clears up that issue.

Yes, I think that you can use the consent order to rectify any unjustice to you under a theory of estoppel.

Yes, of course if the consent order for ED was set aside then you have all the same negotiating power that you had at the beginning of your case (I am saying this without reviewing the entire file - so there may be extenuating factors involved that I do not know about). Thank you and good luck.

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.


#6

In a past posting, Janet, you stated “Dividing up the house must be dealt with by separation agreement or the court prior to obtaining a divorce, or you lose the right to equitable distribution.”

My divorce was granted January of this year and the ED portion was left “open” because her attorney declared a Consent Order dividing marital property my ex and I signed in August 2004, null and void. I had agreed in the Consent Order to give her half the equity in the marital home, plus a car and insurance for a period of time, and took ALL the debt. After the home was appraised I felt the amount was too low so I gave her ALL the equity, plus fullfilled all the other requirements of the Order.

Fact of the matter is, her attorney sat on the Order until just before the court date of the divorce and my former attorney didn’t follow up on it.

Now I am receiving request for depostions from her attorney.

My questions are these:

  1. Who (if any) has lost the right to equitable distribution?

  2. Can I use the Consent Order in any way and if she is granted MORE, will I be credited with what I gave her required by the Order. I have all receipts.

  3. Is there much room for negotiation on my part, ie, requesting she repay half the marital debt at time of seperation?

Thanks so much for your forum!!!