Equitable Distribution


#1

My husband is suing me for ED, asking for unequal distribution. We are not divorced, but began living separately Nov 08 due to his unstable mental condition (bi-polar), I did not want to move from our home but had to for the safety and well being of myself and children (from previous marriage).

He invested separate funds in the house, (escrow closed about 2 weeks AFTER we married), and took out a small mortgage for the balance in his name. On the same day as title was conveyed into his name, he reconveyed title into both our names, listing me as wife. He did this as assurance to me that he intended for our marriage to not end in divorce, and that regardless of my lack of funds to invest, it would be considered OUR home.

I have no intentions of divorce. I had hoped he would get better through therapy and meds, and that when my children were out of the home, we could reconcile. Since he is now suing me for unequal distribution I can see that he will probably move on to divorce, but hasn’t mentioned that yet. He won’t talk to me.

My questions around all this:

  1. Is the money he invested in our marriage home (and of which I am on the deed) still considered separate personal property for him?

  2. Would it be in my best interests to file for divorce from bed & board, considering the living conditions my children and I endured before moving from our home? (Involving a police visit, suggesting a restraining order or that I should move from harms way)

  3. I have no discretionary income to hire an attorney. He has an attorney.

Is it even worth it for me to try to get my interest in our home? It’s all I will really get from this marriage, and I had such hopes for it lasting.

The marriage is also considered a “short marriage” from my understanding. It took only two years of living with him to discover his mental instability. Although technically aren’t we still considered married ? (it’s been over 5 years now)…


#2

The law presumes that contributions of separate property to the marital residence are presumed to be a gift to the marriage, so your husband is entitled to half of the equity in the home, and so are you. You have the option of filing for divorce from b&b, but you will need to prove he commited at least one marital fault. You are already not living together, so obviously the judge will not order him to move out. It would cut off certain inchoate property rights between you as spouses, but that is all it would really do for you. Still, if you are unsure about whether he will file for divorce, and you don’t want to file for divorce, it could be a good option for you potentially. You will probably need the assistance of an attorney though since it’s litigation, so you may want to consider that as a factor in your decision too. I think you would be better off putting those funds into a consultation with an attorney about the fact that you are being sued for unequal distribution. They will be able to create a plan of action for you in the litigation that has already been initiated.


#3

Thank you so much Ms. Ross. So even though the marriage was considered a “short marriage”…I am still entitled to 50% of the equity?
That’s all I really wanted…I really have no discretionary income to pay for an attorney at this time. Would an attorney litigate and then allow me to pay fees upon my settlement? Or, perhaps it would be helpful for me to use your firm’s service for $199 per month and I could complete this myself?

Due to market changes, although there was initially about $155,000 of equity in the house, there is now only about $100,000 or less. The devaluation also occurred due my husband starting remodeling projects that have never been finished, leaving the house in a less than desirable condition for resale at this time.

Will the court also take into consideration that I really did not WANT to leave the home, but needed to protect myself and my children? Is that even an issue that needs to be brought up?

I have a pre-trial conference coming up next week. Would there be grounds to dismiss this case against me, based on that I am entitled to 50% by law? His attorney tells me, he wants me to convey all title back to him, so that he gets 100% of any equity from the sale of the house. He claims he is “absorbing the loss of equity” since the original amount he invested into the house, he couldn’t re-coup even if I was not on the deed.

I am so grateful for this forum and your response is much appreciated.


#4

This is from N.C.G.S. 50-20: “Divisible property” means all real and personal property as set forth below:

a. All appreciation and diminution in value of marital property and divisible property of the parties occurring after the date of separation and prior to the date of distribution, except that appreciation or diminution in value which is the result of postseparation actions or activities of a spouse shall not be treated as divisible property.

A short term marriage doesn’t affect the 50% figure for ED purposes. All marital property that was acquired during that short marriage is subject to ED. An attorney is not going to litigate now and have you pay fees upon settlement. Family attorneys do not do that, in fact most attorneys period will not litigate without being paid upfront except for personal injury attys (who are usually paid on a contingency basis). You might have a chance though to see if an attorney is able to take your case pro bono in a sense, if you let them know your spouse is represented, but this is most likely only going to be feasible if you qualify as a dependent spouse. Then, the family attorney could take your case and charge you fees and ask the court to order STBX to pay your fees. If the court doesn’t award attys fees, then the atty could decide not to charge you and consider it pro bono. This is something that is possible, but rare, and you would need to find someone who is able to do this.

Your best option is to probably puruse the DIY service for $199 per month. However, litigation is something that you should at least have a consultation with an attorney for to get you on the right path. The fact that you left the house is not relevant at all in an ED trial.