Ex servered me Civil Summons


#1

So I lost my job back in Dec 2016 and immediately went to lawyer asking what to do about my alimony payment. My alimony is not court ordered and he said I’m still obligated to pay. I asked what to do if I could not afford the whole amount and he said to pay what I could. He said the one thing to do was to at least made sure her mortgage was paid since my name was still on it. So in Jan I gave her a letter stating the only think I could do that month was pay for the mortgage so she and the kids would not lose the home.
I also have emails discussing with my ex that it was hard to find a job and that the alimony amount of 3200 was hard asked it be reduced to $2400 and I have an email from her saying;
"I know there going to have to be a change in the alimony with the losing of your job. But I can only go as low as 2600.00 a month to survive. I have to pay my own health insurance."
Then in Feb I still could only afford her mortgage because I was still on unemployment.

For March, I paid her mortgage again but I just started to work and also set her a check for $1100. I also enclosed a breakdown for her;
Enclosed is the check for March, along with a partial pay back for Jan/Feb amount still owed.
Break down is below.
January Febuary March
Spousal Support 3200 Spousal Support 2600 Spousal Support 2400
Mortgage -1166.04 Mortgage -1166.04 Mortgage -1166.04
Kids Health -242.47 Kids Health -242.47 Kids Health -242.47
Total 1791.49 Total 1191.49 Total 991.49

Amount still owed
Jan 1791.49
Feb 1191.49
Still owe 2982.98
Paydown -108.51
Still owe 2874.47

In April I sent her a check for $2400, which she cashed like she did the previous month.

Today, the Sheriff served me a Civil Summons, where she claims I did not pay her for Jan, Feb, and March 2017 for 9600 minus the 1100, for a total of 8500.
She is also asking for 6200 for unpaid assistance regarding health insurance.
In the separation paper it states;
Following the divorce of the parties,Husband shall pay to Wife an additional sum of $200.00 per month for the cost associated with obtaining her own health insurance coverage, and the same shall continue until such time when Wife is eligible to obtain coverage from full time employment or obtains coverage under another party’s health insurance plan, whichever first occurs.

She has insurance coverage through obamacare.

Our divorce was final in Aug, 2014, and it also states ;
Also, Wife shall indemnify Husband from and against all obligations, claims and expenses, including reasonable attorney’s fees arising out of or relating to the aforementioned note(s) and deed(s) of trust. Wife shall make her best good faith effort to refinance or otherwise solely assume the mortgage debt associated with the marital residence such that Husband’s name is removed from the same.

But she has not removed my name from the house, she received half my 401K of about 72K which she took in cash amounting to about a little over 50K. So she had the means to refinance and remove my name.

Can I counter sue her to sell the home now because I know now her credit is not good, and she’s in debt consolidation?
Can she ask for 8500, when I made sure the mortgage was paid? Shouldn’t this be deducted?
Also, in her email she said she could do 2600 a month. In the letter I enclosed with the check in March, it said 2600 for Feb and for March I said 2400. Then in April I sent a check for 2400.
She cashed it, if she did not agree to the 2400, she never sent any correspondence stating this.

What are my options?

Thanks
Joe


#2

Assuming you have a separation agreement that is not incorporated into an absolute divorce judgment, then yes, you can file a counterclaim against your ex-wife for breach of contract for not having refinanced the mortgage within a reasonable amount of time if she has had the means and ability the do so (although this will be difficult to prove without knowing what a bank would or would not do). You cannot file a counterclaim for your ex-wife to do something other than what the separation agreement calls for (for example, selling the house).

Yes, your ex-wife can still sue you for breach of contract for not making the alimony payments exactly as the separation agreement requires. Her actions of cashing the checks and agreeing through email to a different amount does not constitute a modification or amendment to the separation agreement unless your separation agreement specifies this to be the case.

You can try to discuss with your ex-wife or her attorney with the possibility of amending the separation agreement to include a payment plan for you to pay all of the “back-alimony” that you were not able to pay because you lost your job. If she were agreeable to this, you would want to include in your written and notarized agreement amendment that she will dismiss the lawsuit against you.


Anna Ayscue

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

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