Ed


#1

My spouse and I have been separated for over 20 months due to a DVPO & filed divorce. We had been working on rekindling the marriage and I spent a great deal of time at the marital home during the separation. Everything was amicable until the first court date for temporary custody. On the stand she stated the separation was meant to be permanent. I was shocked, but that is not my immediate concern. I recently received documents that the marital home is in foreclosure. She has not paid the mortgage in 20 months. I have spoken to the bank extensively and they are willing to modify loan. I have sent the bank my personal information in, but she has not done the same. I even sent a message to her attorney asking her to assist me. The modification is dependent on both of us working with the bank. We have a court date for ED. Can the court award her sole possession of the home and remove me from the deed and mortgage during ED? I am concerned about losing my home. I’d rather put the property up for sale than hand it over to her. There is very little equity in the home due to the economy and missed payments. If she were looking out for the best interest of the children, who live in the home she should have paid the mortgage or modify it.

Any advice will be appreciated.

Thanks,
BMEWS


#2

Yes, the judge can award the house to whichever party he/she deems appropriate. The judge cannot order the bank to remove a name from a deed of trust since the bank is the beneficiary and not a party to the equitable distribution action. The judge can order that a party refinance to remove a name, but if your wife has not been paying the mortgage, sounds like it would be difficult for her to comply with that order if it was issued.

Depending on when your trial for equitable distribution is set, you may want to consider a motion for interim distribution. Rosen Online is a good resource for determining if this is the right move for you and if so, how to pursue it. www.rosen.com/diy


#3

The house is in foreclosure no sale date yet. Can I apply to the court to remove my personal items, which are not part of the ED? I ask because I do not want to be in violation of Domistic Criminal Tresspassing law.

My spouse used to live abroad and may flee back overseas or move to another state with our children when the house is sold. Can I file a motion to prevent her from fleeing with my kids?

Thanks,
BMEWS


#4

Yes, you can ask for an interim distribution of your personal items, or you can ask for them at the equitable distribution trial.

You need to have a custody order outlining custody so that she can’t flee with them. You can file a motion for emergency custody based on fleeing the jurisdiction (NCGS 50-13.5(d)(3) but at this point, your motion may not be ripe and may be denied because an idea that she may move does not necessarily mean substantial risk as needed under the statute.