Filing motion to refinance the house


#1

This is something that can be addressed at the hearing for interim distribution and you will both be able to present your arguments to the judge at that time. If the balance on the mortgage is going to remain the same after the refinance, then the judge may allow him to do it to free up some money to pay his expenses and your support. Even if it extends the payment time, if you ultimately end up with the house and take over payment of the mortgage, is there a reason you couldn’t simply pay more towards the mortgage and accelerate the time it takes to pay it off?

Since the underlying action is equitable distribution, you would not be eligible for attorney’s fees, unless the court believed his motion was frivolous.

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

Durham & Chapel Hill Office
1829 East Franklin Street
Building 600
Chapel Hill, NC 27514
(919) 321.0780

ROSEN.COM

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.


#2

Also, if I read this correctly, he’s not trying to settle this with you because it’s in the PSS order. He must go to court to have anything order changed.


#3

I guess I was thinking that in the final ED distribution/support hearing he would be asked to continue to pay the house mortgage until it is paid off - in about 7 years. In that senario, if the refinance extends the mortgage payment to 10 years or 15 years, I would lose out if any of those criteria occur - his death, a remarriage for me or a cohabitation for me. He does not carry life insurance so if he were to die, I would be fully responsible.

But, maybe I am not understanding how the ED works. Maybe what I would need to fight for is that I get a share of the marital assests in order to make the house payments myself and to be awarded the house. (He does not want the house as he bought himself a new house) Without a share of the assests, I do not have the resources to make the house mortgage considering my salary and current support from him.

It might be in our situation, there is not enough money to go around for both of us to live in the standard of living we were accoustomed to while married, and I understand that completely. But I feel that as his responsibility to his minor children (youngest is 12), they should be allowed to live in the marital home if desired. Is there ever a situation where one spouse continues to pay on the home until the children have left and the home is completely paid for (which in our case the timing would be right) and then for the house to be sold, or if one party wished to stay in the house, then they at that time buy the other out?

The mortgage he pays for his new home is higher than the marital home and is a much bigger house. I would think if he had the funds to pay his mortgage, then he should be made to pay the mortgage for the chldren’s home.


#4

When ED and alimony are resolved the house as an asset will be dealt with separately from his support obligation. There will be a set amount of support that he is to pay you, which will include your expenses such as; food, housing, clothing, medical bills.

When the house is valued the court will take into account any debt existing on the house at the date of separation. Once it was distributed to you, you would be responsible for making future mortgage payments, if you wished to pay it off quicker you could always increase your payments.

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

Durham & Chapel Hill Office
1829 East Franklin Street
Building 600
Chapel Hill, NC 27514
(919) 321.0780

ROSEN.COM

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.


#5

It would seem that once the house is given to you, you would have to refinance anyway into your own name. It would be foolish of the ex to trust you to pay the mortgage that’s in his name. Not that you wouldn’t make payments, I just think it’s best to sever that financial connection. Helena is right. If he is refinancing to lower payments, you could just pay what they are now. The extra would go toward principal anyway.


#6

I would like to refinance my mortgage as well. I have been divorced since August 2007, but the equitable distribution of property is still pending. The ED mediation in Feb 2007 reached an impasse. The house is currently tittled joint and the adjustable rate Mortgage(ARM) is joint as well. There is an agreement with the ex to sell the house but I have had no purchase offers since it went on sale in August. Ex moved to Dallas in December 2006 and doesn’t pay towards mortgage or maintenance, and hasn’t done so since 2003, as he was unemployed for 3+ years.
The ARM mortgage adjusted once already last June and will go up again soon. I want to go ahead and refinance to a lower rate, and have the mortgage in my name only.
The lender has already locked a good rate for me and has the application ready. This will save me $200 a month.
There is no communication with the ex as there is a DVPO 50B as well as criminal no-contact order in place. What do I need to do get the refi done and the title transfered?
Thanks


#7

Tessy, you would need to file an action for Equitable Distribution and set he issue for hearing. You would explain the facts to the judge at that time and ask for them to distribute the house to you.

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

Durham & Chapel Hill Office
1829 East Franklin Street
Building 600
Chapel Hill, NC 27514
(919) 321.0780

ROSEN.COM

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.


#8

My ex H is filing a motion to refinance the house. We have not completed the ED yet, but the PSS order says he is to pay the house mortgage until the order is changed, he dies, I die, I remarry or I cohabitate. He wishes to lower the mortgage payment (which he has paid since the date of separation Oct 06) to reduce his expenses. But, if the refinance allows the payments to be extended then that is not fair to me. He was ordered to pay the mortgage as he is the supporting spouse and I do not have the means to pay for the house, where I live with 3 minor children. Plus, he is taking me to court for this, without even trying to settle anything out of court. Is this a hearing where I could ask atty fees to be paid. He will hurt me financially in 2 ways with this if he is successful - by extending the length of the mortgage and legal fees.