Equitable distribution


#1

I filed a equitable distrution order, but we were still living together. My attorney told me it will be dismissed, because we are still living together. A little while later my attorney died. I was looking for new counsel, but decided against it, since nothing no one can do if still living together. Her attorney just recently sent me a letter for hearing to dismissed. I think it is pointless to hirer another attorney, since we are still together. However, my Dad just recently died, and my wife is now afraid to stay in the house. She is afraid when people die. So if I go to court can I say to the judge can we divide the property, since my wife has left the house. Can i change locks?


#2

You cannot file for ED until you have physically separated, so your lawyer was correct about that. You say that now your wife has moved out. Well, it is only going to count as a legal separation for divorce purposes if she has moved out of the marital residence with the intention of living separate and apart. If she intends to come back at the time she left, then it will not count as a separation (such as her taking an extended trip somewhere or to help a sick relative). So, her intent is key. If you feel that she is not intending to resume living with you and/or she does something like get a lease somewhere, then yes you can count that as a separation. You can change the locks immediately and you do not have to consent to her coming on to the property.


#3

I offered her to buy me out of the house or I will buy her. However, she doesn’t want either. She wants me to move out, and her take over the payments. However, she plans to give no money in equity. Should I just sit tight in the house until she decides and not hirer an attorney. It seems I am just wasting my money hiring an attorney if you can file for divorce if living together.
If I move out her attorney will then say I abandoned her. Then I could be at fault.


#4

I wouldn’t worry about abandonment. However, you cannot file for divorce in NC while you are still living together. One of you will need to move out prior to filing for divorce. If she doesn’t want to give you half of the equity, I would not recommend removing yourself from the deed.


#5

I don’t think I want to remove myself from the deed, because there is 50 thousand dollars equity. Also, I can’t do that unless you is willing to assume the loan. Her income isn’t high enough, and she filed bankrupsy so her credit isn’t good.


#6

Yes, as I mentioned, you should not remove yourself unless/until she pays you your half of the equity. In the meantime, you cannot file for ED until one of you moves out. You can try to draft a separation agreement now while you are living together wherein you agree to either keep the house and give her her share of the equity, or you both agree to sell it and split the proceeds. I don’t think she would qualify to refinance in her own name, like you said, so those are really your best options at this point. You may need to move out and file ED and you would then get half the equity if she will not agree to anything. There is no way she should get what she wants, if she wants you to leave with no equity and keep your name on everything, tying up your money and credit. You should definitely hire an attorney if you need to file for ED.