Equitable division

Who usually gets the house? My name isn’t in the mortgage but it’s in the deed.

If both you and your spouse’s names are on the deed to the marital residence, then you both own the home and you both have equal rights to the home.

The spouse that is able to financially maintain the home will typically be the one to keep the home, if that spouse wants to keep it. In your case, you could keep the home if you wanted it and if you were able to refinance the mortgage and buy out your spouse’s interest. If neither party can financially maintain the home or if there is a disagreement as to who will keep the home, then the house is typically sold and the net proceeds divided equally.


Anna Ayscue

Attorney with Rosen Law Firm Cary • Chapel Hill • Durham • Raleigh • Wake Forest

Rosen Online | Unlimited confidential access to a North Carolina attorney for $199/mo - click here

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.

Thanks… Reading over the motion that was filed against me it says:

  1. The marital property of the parties be divided according to the Equitable Distribution laws of North Carolina
  2. That, pending a final equitable distribution, this court make appropriate interim determinations concerning the property and debts of the parties.
  3. That the defendant be enjoined and restrained from disposing of, damaging or concealing marital property pending further a final equitable distribution

What exactly is that saying? I have a temporary order of protection against her as well as a simple assualt charge… I am not going to proceed so we can talk about what is going to happen with the house and everything in it before we go in front of the judge… I make $1100-1200 bi weekly with a morgate of $750 so I can afford the home. She changed the password so I cant even get on the lenders website to pay it… What are some reason they will give her the house… And no children…

It looks like your spouse has asked for the court for an interim distribution (the distribution of certain marital assets before the final distribution takes place) and a temporary restraining order/preliminary injunction to prevent you for selling, damaging, disposing, etc. of marital assets until equitable distribution can be finalized.

She could receive the house for many reasons including the ability to financially afford it long-term, if she purchased it prior to the date of separation but it is now also marital property, etc. There may also be many reasons for you to keep it as well. If the parties cannot agree, oftentimes the judge will order that the house be sold and the net proceeds divided equally.


Anna Ayscue

Attorney with Rosen Law Firm Cary • Chapel Hill • Durham • Raleigh • Wake Forest

Rosen Online | Unlimited confidential access to a North Carolina attorney for $199/mo - click here

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.

Thanks… With that being said a temporary restraining order is me not coming in contact with her correct? I have one on her already… Plus Simple Assualt charges… I make more then her and have less debt then her… Her name is on the mortgage, but mine is on the deed… I have her half of everything to purchase the house. What can be my defense in keeping the house?

The temporary restraining order and preliminary injunction mentioned in the previous post is related to equitable distribution. A temporary restraining order motion filed along with an equitable distribution claim is to prevent someone from doing something he/she has a legal right to do. Typically in equitable distribution and divorce cases, this means that one spouse wants to prevent the other spouse from liquidating a marital asset such as a 401(k) or selling stock that is marital property until equitable distribution can be fully resolved. This kind of temporary restraining order and preliminary injunction is different than a domestic violence protective order.

Arguments for you keeping the house can include, among other things, the ability to financially maintain it, the ability to quickly refinance the mortgage from her name into yours, and the ability to pay her her share of the home.


Anna Ayscue

Attorney with Rosen Law Firm Cary • Chapel Hill • Durham • Raleigh • Wake Forest

Rosen Online | Unlimited confidential access to a North Carolina attorney for $199/mo - click here

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.

Understood… Due to credit issues I would have to find a lender to refinance the home and that might be difficult… I really want the home sold if we not living there together. I am not sure if she can afford the home with the expenses… She will try to tell the court she can, but living with her for 6 yrs and now she is only with one job it will be hard… How long will the court give me to find a lender? Is this a quick process?

Typically the time to refinance a mortgage is 90-120 days but sometimes 6 months. It’s possible to agree to a longer period of time if you and your spouse will be settling the issue of equitable distribution by consent.


Anna Ayscue

Attorney with Rosen Law Firm Cary • Chapel Hill • Durham • Raleigh • Wake Forest

Rosen Online | Unlimited confidential access to a North Carolina attorney for $199/mo - click here

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.

Will the determination happen the first court hearing? And can I be allowed time to get a lawyer? Can I ask for a continuous to seek legal help? My wife was stashing money. That’s why she can afford to file this motion.

A trial determining the outcome may or may not happen on the first court date. This depends on court availability and your county’s local rules, if any, regarding the progression of equitable distribution cases.

If a motion for interim distribution is calendared, then that is more likely to be heard and ruled on by the judge at the first court date.

You should secure a lawyer in advance of the first court date. You are not guaranteed a continuance in family court in order to seek legal counsel.


Anna Ayscue

Attorney with Rosen Law Firm Cary • Chapel Hill • Durham • Raleigh • Wake Forest

Rosen Online | Unlimited confidential access to a North Carolina attorney for $199/mo - click here

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.

Is there supposed to be some type of meditation before we go in front of the judge? I am nervous because the 1st appearance I will be there alone with no legal representation because my lawyer was sick when I was scheduled to see her for consultation… So they rescheduled to the actually date of the initial hearing. I just don’t want to get railroaded because I have no attorney as of now.

Some counties’ local rules require mediation before any hearings or trials on equitable distribution, other counties’ local rules do not. And if it the court date is for interim distribution, there will not be mediation beforehand as a motion for interim distribution is usually filed and heard early in the case.


Anna Ayscue

Attorney with Rosen Law Firm Cary • Chapel Hill • Durham • Raleigh • Wake Forest

Rosen Online | Unlimited confidential access to a North Carolina attorney for $199/mo - click here

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.

Yes a motion was filed, but there is no exact language stating if she wants the house so I’m confused.

New situation regarding the equitable division… Just received a letter from the DMV suspending my licenses for a out of state ticket… The car is in both of our name. She is owner #1 and I am owner #2… The car was purchased before we was married so that makes us 50/50 owner… The car is listed as part of my bankruptcy… I have been the sole person making the notes as well as the upkeep of the car, it is also my only means of transporation to work. Right now I am keeping the car parked until I get my licences situated. She also have her own car. Will the judge give the car to her because my licenses was suspended? Right now under the bankruptcy she has no financial liabilities, the interest is inside my plan…

If you have a current bankruptcy case, your equitable distribution case will be stayed (put on hold) until the bankruptcy case is completely finished. You cannot distribute and divide marital property while a bankruptcy case is pending.

Assuming no bankruptcy, it would be more likely that you would be awarded the vehicle, despite your driver’s license issue, since you have been the one using the vehicle throughout the marriage and your spouse already has a vehicle that she uses and is in her possession.


Anna Ayscue

Attorney with Rosen Law Firm Cary • Chapel Hill • Durham • Raleigh • Wake Forest

Rosen Online | Unlimited confidential access to a North Carolina attorney for $199/mo - click here

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.

Will the bankruptcy case put a interim equitable division on hold as well? I have the first hearing tomorrow…

New development… So I am in Chapter 13 bankruptcy and was before the separation… The house is listed as a asset because I am on the deed, but not the title… I requested a continuance and was granted for another 2 weeks… Can a interim equitable division still (requested by my wife trying to get possession of the house) take place? I know bankruptcy there can be no actions until the bankruptcy is complete… Is that counting the house as well?

Nothing regarding equitable distribution or interim distribution can be determined or settled while bankruptcy is pending for either spouse.


Anna Ayscue

Attorney with Rosen Law Firm Cary • Chapel Hill • Durham • Raleigh • Wake Forest

Rosen Online | Unlimited confidential access to a North Carolina attorney for $199/mo - click here

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.

Even if I filed the bankruptcy before she filed the equitable motion?

And if everything is at a stay because of the bankruptcy can I request her still to financially involved? At least 50/50?