Got a separation agreement and a backdated promissary note!


#1

Here is the situation…

I got laid off Aug 08. My wife presented me with a separation agreement with questionnable terms along with a promissary note in both names to repay her father for his monthly contributions that somehow were officialized thru this paper. I NEVER asked for bailout nor signed the note…My wife makes very little money, all my pay went to our joint checking to pay for mortgage and other expenses.
I lost the job, still contributed but not as much (50% of the mortgage).
Financial situation is tough, and I was told that the longer I stay in the house the less money I get (potential buy out). I am questionning the validity of this note and consider it a sham…

YOUR THOUGHTS?


#2

The promissory note is evidence of a martial debt, even if only your wife signed the note. If your father in law made financial contributions to you and your wife which he expected would be paid back that is a marital debt and it will be factored in to equitable distribution.
As for your payment of the mortgage, you are entitled to one half of any reduction in principal which you make after the date of separation.


#3

I understand about the note but it was never agreed upon and became an assumption. She did not sign it either…So I can also do the same for my credit card debt and put it into the marital mix?


#4

Any debt that was incurred during the marriage and before the date of separation is considered a martial debt; unless it can be proved the debt was not incurred for the benefit of the marriage. ( a debt incurred in anticipation of separation, or a debt incurred spending money on a paramour are examples of debts that would not be for the benefit of the marriage).
If the money lent to you by her father was to enable the two of you to meet your monthly expenses, it will likely be considered marital whether or not any promissory note was signed so long as your spouse can prove it was indeed a loan and not a gift.
If your credit card debt was incurred during the marriage for day to day spending, household expenses, or any other expense related to your lives together, it will be included in the martial estate.


#5

The money was in excess of what was needed…
The mortgage was $2,053 he paid $3,000 and I put it $1300 so how can this be agreeable? Also the money is given to my wife not to our joint account…Are you sure I am still liable for this???


#6

You can argue that the money was a gift, however if it was indeed a loan that you incurred during the marriage you are liable for half.


#7

What you are saying is that EVEN if I did not agree to the note, signed it and even discussed the terms of note I am still liable?? If the amount was in excess of the bills I am also still liable?

I am really at loss…anyone can then produce a note and name someone else as a debtor? I apologize for my candor but I am at loss here!!!


#8

Yes. As I said before, you have an argument that the money was a gift and if the terms of the note are obviously usurious you can argue that your ex is attempting a fraud on the court however just as any credit card debt you incurred is marital, so is this debt. If you received the funds and made use of them during and for the benefit of the marriage, it is a marital debt which will be included in the distribution of the marital estate.


#9

I understand the reply…I know for a fact that my wife did not come up with this idea but her lawyer did to make me “get out of the house” and stop taking advantage of her father (verbatim)


#10

Albeit not in our joint names, my credit cards were used to keep up with living expenses food and other items…no personal luxury or frivolous items…can this be counted as joint debts?

BEST


#11

Yes, the credit cards that were used during the marriage are also part of the distribution.


#12

the separation paper mentions a lump sum that is clearly 40% less than what it should be (house value minus note) and if I do not accept it then my spouse will sue me for divorce (on what grounds? there are none) and I will have no money…csn she do that??


#13

Your wife may sue you for divorce and equitable distribution of property. In North Carolina a plaintiff is not requited to allege fault in order to file suit for divorce or equitable distribution of property as this is a no fault state.
The claim for equitable distribution is essentially a request that the court equitably divide the martial property and debts.