Equitable Distribution Issues

North Carolina Divorce Law Divorce and Separation Answers
1

  1. No. Inheritance is separate property as long as the spouse is not mentioned and you have not “given” it to the marriage by putting that money in a joint account with her name on it.

  2. Any amount paid on marital debt or increased equity after the date of separation is considered separate property, normally. There may be few exceptions but it’s sounds as though since she left the marital home and did not contribute to the debt after that time, she does not get to claim that part of the assets.

  3. Any money contributed to 401K/retirement savings/pensions must be divided except money that was contributed before marriage or after the date of separation. During the 1.5 years, you would need to figure the amount contributed to the accounts during that time and divide that as marital property.

  4. If you are not legally divorced then she would have had to file married separate, or married. Any tax owed to the IRS while you were still married is considered marital debt and must be divided.
    I’m not sure what you mean by disclaimed liability on your earnings…
    It would probably be worth the money to consult with an attorney to better see where you stand.

2

  1. When you say joint with rights of survivorship, I am assuming they were joint with your father? The mutual funds are your separate property and are not subject to division unless they were given to both of you.

  2. Generally you are entitled to keep any reduction in the principle on the mortgage, meaning the difference in the balance of the mortgage on the day you separated and the day you sell or otherwise divide the property. You will not receive credit for the interest you paid.

  3. Did you execute a Separation Agreement when you separated in the 80’s.

  4. If she stuck you with a higher debt than you might have otherwise paid if she has filed jointly, she may be found to have committed marital waste and may be stuck with this debt. I am not sure what you mean when you ask if she can claim your earnings?

P.S. Please feel free to bring up this or any other topic on our live call-in show every Wednesday at 11:00 a.m. EST. Visit radio.rosen.com for details

Helena M. Nevicosi
Attorney with Rosen Law Firm

4101 Lake Boone Trail, Suite 500
Raleigh, North Carolina 27607
919.787.6668 main phone
919.787.6361 main fax

Charlotte Office
301 McCullough Drive
Suite 510
Charlotte, NC 28262
Main Phone: (704)307.4600
Main Fax: (704) 9343.0044

Sutton Station
5826 Fayetteville Rd. Suite 205
Durham, NC 27713
Phone: (919) 321-0780

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 only, a full discussion with an attorney should be undertaken before taking any action. The information posted on this forum is available for public viewing and is not intended to create an attorney client relationship with any individual. These answers are provided for informational purposes only, a person should consult with their own individual legal counsel before taking any action that could affect their legal rights or obligations.

3

My response to your responses below:

  1. The home equity indebtedness was borrowed from my employer’s credit union. The payment is automatically deducted from my paycheck. Therefore, I have no option but to pay it. So, from your answer, it appears that I am out-of-luck w/regards to the interest paid. In light of the above (automatically removed from my paycheck) this seems grossly unfair. I have no choice but to pay it. I only receive a 30% deduction on the interest so I lose 70% of the amount of any interest paid.

  2. We did NOT sign a separation agreement in the 80’s. NC Law, as it is today, says you are legally separated on the day you stop cohabitating. Given this, why would a separation agreement be necessary? What if one of us had won the lottery during this time? Would the other have been able to get half of it?

  3. Taxes - she talked to an accountant who told her she’d pay less if she filed separately. We have rental property (no taxes paid on during the year) and I had a part-time consulting gig (no taxes paid on during the year). She benefitted from both of these as well as my full time position (taxes deducted each year). She filed alone, although she signed a contract to do file together, and we have gone back and forth with the IRS and NC DOR for 2 years. I believe it is now behind us w/each of these. I had a 10k liability as a result. Most of this I would not have had if filed jointly. So, now that this is behind us (I hope) I am saying that if she disclaims tax liability on my 2006 earnings then she should not be able to “claim” a piece of it w/regards to my 401k and pension. In other words, it doesn’t seem fair that she claims the earnings but doesn’t pay taxes on it. It would benefit me more now to leave the tax situation as it is and for her to remove her claim on my pension and 401k for that time.

Any chance I can prevail here?

NEW QUESTION. I have proof of potentially adulterous conduct on her part prior to separation - with a co-worker. Her employer was aware of this conduct. Can I successfully sue her employer?

Thanks!

quote:
[i]Originally posted by Helena Nevicosi[/i] [br]1. When you say joint with rights of survivorship, I am assuming they were joint with your father? The mutual funds are your separate property and are not subject to division unless they were given to both of you.

  1. Generally you are entitled to keep any reduction in the principle on the mortgage, meaning the difference in the balance of the mortgage on the day you separated and the day you sell or otherwise divide the property. You will not receive credit for the interest you paid.

  2. Did you execute a Separation Agreement when you separated in the 80’s.

  3. If she stuck you with a higher debt than you might have otherwise paid if she has filed jointly, she may be found to have committed marital waste and may be stuck with this debt. I am not sure what you mean when you ask if she can claim your earnings?

P.S. Please feel free to bring up this or any other topic on our live call-in show every Wednesday at 11:00 a.m. EST. Visit radio.rosen.com for details

Helena M. Nevicosi
Attorney with Rosen Law Firm

4101 Lake Boone Trail, Suite 500
Raleigh, North Carolina 27607
919.787.6668 main phone
919.787.6361 main fax

Charlotte Office
301 McCullough Drive
Suite 510
Charlotte, NC 28262
Main Phone: (704)307.4600
Main Fax: (704) 9343.0044

Sutton Station
5826 Fayetteville Rd. Suite 205
Durham, NC 27713
Phone: (919) 321-0780

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 only, a full discussion with an attorney should be undertaken before taking any action. The information posted on this forum is available for public viewing and is not intended to create an attorney client relationship with any individual. These answers are provided for informational purposes only, a person should consult with their own individual legal counsel before taking any action that could affect their legal rights or obligations.

4

POTENTIALLY adulterous conduct??

Unless you can prove adultery and prove that the employer ACTIVELY encouraged adultery (by forcing them to share hotel rooms on business trips or something like that), you will have a hard time making any such case and will spend upwards of 10k or so to even just take this into court. You’ll have to have hard evidence, not just your opinions to make this work.

IMHO, your beef is with her, not the employer. Another reason why AA/CC laws need to go away. Employers can really be put in a bind. An employer can’t interfere with an employee’s private life without risk of being sued, yet can be held liable or at least extremely harrassed because an employee chose to commit adultery.

Just because you feel you can get cash out of a business doesn’t make it the right thing to do.

5

Helena, you asked if we signed a Separation Agreement in the mid 80s. No, we did not. Why is that relevant if NC Law says you are legally separated once you cease cohabitation?

quote]Originally posted by Helena Nevicosi
[br]1. When you say joint with rights of survivorship, I am assuming they were joint with your father? The mutual funds are your separate property and are not subject to division unless they were given to both of you.

  1. Generally you are entitled to keep any reduction in the principle on the mortgage, meaning the difference in the balance of the mortgage on the day you separated and the day you sell or otherwise divide the property. You will not receive credit for the interest you paid.

  2. Did you execute a Separation Agreement when you separated in the 80’s.

  3. If she stuck you with a higher debt than you might have otherwise paid if she has filed jointly, she may be found to have committed marital waste and may be stuck with this debt. I am not sure what you mean when you ask if she can claim your earnings?

P.S. Please feel free to bring up this or any other topic on our live call-in show every Wednesday at 11:00 a.m. EST. Visit radio.rosen.com for details

Helena M. Nevicosi
Attorney with Rosen Law Firm

4101 Lake Boone Trail, Suite 500
Raleigh, North Carolina 27607
919.787.6668 main phone
919.787.6361 main fax

Charlotte Office
301 McCullough Drive
Suite 510
Charlotte, NC 28262
Main Phone: (704)307.4600
Main Fax: (704) 9343.0044

Sutton Station
5826 Fayetteville Rd. Suite 205
Durham, NC 27713
Phone: (919) 321-0780

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 only, a full discussion with an attorney should be undertaken before taking any action. The information posted on this forum is available for public viewing and is not intended to create an attorney client relationship with any individual. These answers are provided for informational purposes only, a person should consult with their own individual legal counsel before taking any action that could affect their legal rights or obligations.
[/quote]

Mitch Jones

6

I have the following ED questions:

  1. I inherited monies from my father after his death in 2000. He had the monies in mutual funds and they were listed as “joint with right of survivorship.” I never contributed to these funds, he paid any and all taxes on the gains and I never added any monies to these funds after his death. I also never added my wife’s name to any of the accounts.

Can she get any of these monies as part of ED?

  1. She moved out of the marital home while having an affair. She was NEVER told she could not return. I have paid approximately 30,000 on the home since she left. Can I successfully claim the 30k paid as separate property and deducted from the part of the home she will get?

  2. We separated in the mid 80’s for around 1.5 years. We maintained separate bank accounts and had no contact with each other during this time. Can I successfully claim all monies contributed to my 401k and pension as separate property?

  3. On her State and Federal taxes, she filed separate in the last full year of our marriage. This left me with a 10,000 tax liability. Since she disclaimed liability on my earnings, can she claim the earnings in ED? If so, it doesn’t seem fair because she gets the best of both worlds.

Thanks and wish me luck…