Help Please!

North Carolina Divorce Law Divorce and Separation Answers
1

Well this is tough. Never thought I’d be in need of help on a Divorce Forum, but I guess none of us did.

My wife of 16 years has told me three times over the last two months that she is leaving me, so pehaps I should have acted sooner, but yesterday she said it would be at the end of this month. We have two children and I/we have never gone through something like this, nor have any of my close freinds, so I have not been able to confide in anyone.

Apparently her strongest reason for moving out is due to a lack of communication and the fact that she thinks I am hiding something from her. Nothing could be further from the truth. Personnally I feel that since a number of her close freinds and coworkers have recently gotten divorces, they have been flling her head with garbage, conbined with the stress of layoffs at her office that have sent her over the edge. I also believe she is completely crazy for throwing away what we have built but that life is too short and if she wants out, that is her choice. This decision will completely shock all of our families and friend as there was never anything to indicate something like this was even in the works.

My primary interest here is the well-being of the children. She has a large family and I’m guessing they could take care of her if she needs it. But honestly the children would be better off living with me - due to the stable house, established friends, schools, and the love I can provide them. SHe flippantly mentioned it would be ‘joint custody’ but at this point I am not even sure if that is good or bad.

My questions begin with - what should I do now, prior to her moving out, and then what should I do immediately after she moves out?

For instance, can I / should I change the locks the day she moves out? Would that be recommended? What should be I do with the Autopays set up on our joint account? I understand she is still responsible for the mortgage as we are both on that, but since she is moving out, if she refuses to pay, what recourse do I have? Apparnetly she is moving into an appartment and I know she cannot afford an apartment at today’s rates AND continue to pay her half of the mortgage. What about utility bills at the house? Technically we’d still be married, but do I have to pay them in full, or is she obligated to pay half?

Can she take the kids? Does she have that right?

Also, she has always displayed a lack of interets in our finances, so I have handled them from day 1. That said, I have even been managing her 401K, etc. How should I handle these when she moves out?

Any and all legitimate legal advice would be very much appreciated.

Thank you very much!

2

It is possible that your wife is reacting to many events around her which have led her to believe that divorce is the best course of action. It may be that her excuse of lack of communication is her way of hiding from what the real problem is. Personally, my advise to you and her, is to find a competent marriage counsellor and go. If communication really is the issue, then she should be willing to go to help fix that problem. If she refuses to go, that should tell you something right there. Namely, that she’s expecting something else to fix a different problem.

For the sake of the kids, if she does move out, it is best for the two of you together to sit them down, and age appropriate, explain to them that daddy and mommy need some time apart to work on things and that you both love them, want them and they are in no way responsible. Explain to them that this will mean some changes in their lifestyle, but that the two of you together will always be available to listen to them and will do your utmost to make the change as less traumatic as possible. Then no matter what else occurs between the two of you, keep the kids out of it, and put them first always in any actions you take.

As far as custody goes, yes, it would be best if the kids primary residence is where they are now. Less disruption the better. That doesn’t mean that she can’t technically have 1/2 custody either, though. Both of you are parents unto death and it will take both to continue to parent no matter what happens. Several people on this list have different custody arrangements. My BF does 1 week on, 1 week off, trading out on Fridays after school. Others can tell you what works for them.

Do not talk badly about either parent to the other one, or if either of you eventually start dating, do not talk badly about the new significant other. Doing so calls into question not only the other parent’s decision making abilities but also your own since you bothered to marry them and have kids with them in the first place.

Try to not treat them as the walking wounded or spoil them excessively, keep things as normal as possible and try to always reach concensus between the two of you as far as rewards/punishments go. It’ll save you both hassle in the long run. You may find the kids will get angry or act out from time to time. That’s OK, it’s normal. It’s natural for them to resent not having things the way they want them. If it becomes totally disrupting, don’t hesitate to get them into therapy where they can talk freely about their issues to someone they don’t have a vested interest in pleasing like they do their mom and dad. They love you both and sometimes they will tell you what they think you want to hear.

As far as financials go, I would make arrangements to separate moneys ASAP. The two of you will need to figure out who will pay which bills. She is responsible for 1/2 the marital debt (including the mortgage), and the two of you will split assets, including 401k & retirement. She will need to begin managing her own finances. She chose to leave, you are not responsible for this anymore. If she wants to be on her own, she needs to learn to take care of herself.

Finally, it is best if the two of you can sit down together and put all this in writing through a separation agreement. Custody, division of asset/debts (ED), and any other particulars. Each of you should have your own attorney review this agreement to make sure it can stand up in court and that it protects both of your interests. Making sure that you are both on the same page and in agreement will make the separation go much more smoothly. This in and of itself can either facilitate a reconciliation or a smoother divorce, whichever way it goes. (I say facilitate a reconciliation because if you are both fighting over custody and ED, then it’s more likely that you will stay apart.)

My last comment is that I’m sorry for you. This sucks and you are dependent upon her willingness to work on the relationship after separation. You can’t force her to, but hope that she realizes that she must for her own sake if nothing else. I hope that she knows this.

Don’t worry about what family and friends think. You’d be very surprised what goes on behind closed doors in other families that the outside world is unaware of. Do not be ashamed. This wasn’t your choice. Place your effort on keeping your kids healthy and yourself healthy. Be good to yourself.

My thoughts and prayers are with you and the kids.

(FWIW, I come from the position of being a child of divorce as well as a divorcee myself and one who is dating a divorcee. The worst things my parents ever did were to fight about me in front of me and refuse to communicate with each other. The best things were that they learned to never say anything bad about the other in my presence and both were equally supportive of the new spouses in the other ex’s lives. I came to realize how different they were over time. Both imperfect, both wonderful, and completely different people.)

3

I appreciate your kind and thoughtful response.

Any advice regarding the changing of the locks, her moving day, etc. If she is legally responsible for paying half the mortgage, is it legal for me to change the locks after she moves out? Also, what if I pay my half but she refuses to pay her half? What legal recourse is there and how can I avoid hurting my credit rating?

Bear in mind I am only looking to do what I can LEGALLY do.

Regarding her moving day, I am not sure of her intent, so I am not sure how much she plans to take, what she can legally take, etc. Can/Should I be here the day she moves out to protect myself and my property?

We have two vehicles, both of us are on both titles. She has already stated that she has plans to take the newer vehcile (value is 4 times the older vehicle). Can she do this legally? Where are my rights? Can I legally ‘hide’ the keys to that vehicle?

What a mess!

4

I’m not sure about the changing the locks. I don’t think that there is anything banning you from doing so once she has established a new residence since she is voluntarily quitting the marital residence.

On her moving day, I would be present and yes, you may. Be calm, be as neutral as possible. If it were me, I would make sure that the kids aren’t present. Emotions will be high.

You can place a hold on your credit with the credit bureau to prevent her from opening up any new accounts in your name, and I would do so. The only difficulty here would be if you need to open or extend your lines of credit, it could make it a little more difficult. Do open your own banking account that she doesn’t have access to immediately and put half of your combined monies in there. (Get bank statements, retirement/401k statements, & other financial documentation for the values of things on the date of separation because these will be the figures you will use in the separation and divorce documentation.)

Technically, you each own half of each vehicle. As far as who gets what vehicle, I’m not sure how that would work. If she takes the more valuable vehicle then legally you must be compensated in some other area. I’m not sure that you can prevent her from taking one or the other since you are both on each vehicles’ titles.

If she doesn’t pay her half of the mortgage, I think you can really only attempt to recoup it during equitable distribution (ED). The banks will still consider you both jointly responsible should the mortgage not get paid. If you can afford the house, I’d see about refinancing it solely in your own name provided it is definitely divorce you are heading towards.

Others can probably tell you better about the housing stuff, though.

5

Your wife can take the kids, as you both will have equal rights to the children until there is an agreement or court order in place. I suggest you file an action for child custody immediately when she moves, whether or not she takes the children.
You should change the locks when she leaves as she will lose the right to re-enter the home without your permission. Changing the locks ensures that your right to exclusive possession of the home remains intact.
If your wife refuses to contribute to the mortgage you can file a motion for interim allocation of the marital debt pending a final resolution of equitable distribution. You should also include this claim in your initial complaint for child custody. You will be responsible for the utilities.
Your wife is entitled to take up to half of all the personal property and furnishings in the house, as well as the car. Since both of you are on the title you will not be able to report the car stolen. However the value will be accounted for in equitable distribution, so you are not loosing value.

6

Thanks Erin, I appreciate your response and have set up a consultaion at Rosen in Raleigh later this week - mostly due to your assitance on this forum!

Glad to hear I can change the locks when she moves out without hurting myself legally down the road. Altthough I guess I have to consider if it will hurt me in dealing with my wife - or should I not be concerned about that?

My followup questions include:

  1. How does the law interpret 'Moves Out"? In other words, the way I see it playing out, one day she will just take whatever she is taking and go. There will not be a written statement from her saying she is moving out, so doesn’t it then become a ‘he said, she said’ on when she moved, and if it truly constitued a move? What if she just packs a suitcae and goes? What if her intent is to ‘move out’ over a few days and I change the lock after the first day? Can I deem that to be ‘moving out’ and therfore change the locks? Am I entited to change the locks in that situation after the first day and then ensure that I am present (to allow her access) during any future ‘moving days’? Can she then claim I am somehow preventing her from taking her stuff?

  2. Since the vehlcle she is ‘sticking me with’ needs service, is it a problem if I get it serviced before she moves out and use ‘our’ funds to pay for the repair? Remember, we are both on the title to that vehicle.

  3. Apparently it is advisable to open my own acct and I can take half the money in the joint account to fund the new acct, but is that half the money AT THE TIME OF HER MOVE-OUT Day? Or is that half the money in the account today, even though she may not move out for a week or so?

Thank You again!

7

The separation begins the day that one spouse leaves the marital home. The day that the two begin living separation and apart.
Yes, change the locks the first day. This is why getting a separation agreement prior to her leaving would be a good idea. Set aside a date for her to move and a listing of items that she is taking with her. Have her write out a list of furniture items and things she wants to take and go over it. Decide what you can live without, what can be replaced easily, and what is worth going to court over. Have this put into the agreement. This way, there can not be any question about what she is taking and what is staying in the home.

Yes, since the vehicle is in need of repairs or service, you are allowed to use marital funds for that purpose. In my opinion, it would be easier to do this than to request 1/2 the newer car value and it would possibly be a lesser amount.

The amount of the bank account would be at the time of separation. You can open a separate account and just transfer 1/2 the money to the joint account until the date that she leaves. Gather bank statements so that you can show how much is in the accounts now. This will also protect you in the event that she decides to remove the money entirely. You would still be entitled to get 1/2 the amount back, but that could take some time in court…

8

Just a suggestion:

If your wife is intending on moving out, I would have a neutral party be there when all this is going on. The reason I say this is to avoid the 'he said I couldn’t have this, he wouldn’t let me take this, he was being verbally abusive…"

Unfortunately, separation and divorce can bring out the WORSE in folks, and people will be mean, and lie and accuse you of things you didn’t do. Emotions will be high and you’ll need to support. Have HER bring someone too (sister, mother). Then there are 2 other folks there to keep things calm. Whatever you do, do NOT just leave her there by herself to ‘move out’ or you may not have anything left when you return.

9

Thanks for the replies - some good advice there.

I would like to hear from Erin though to get an atttorney’s perspective.

Erin…

10

The date of separation is simply the day she moves, there need not be documentation. If she leaves with her things, that constitutes moving out, especially since she has indicated her intent to separate in previous conversations.
You can and should change the locks when she goes. As for the rest of her things, that will be dealt with later, you do not have to allow her to retrieve household items immediately, and you can use this as leverage in the negotiation process.
You may absolutely use joint funds to repair the car.
You may take half of the money in the accounts, and may do so now.

11

Thanks Erin! I will discuss my remaining questions during my consultation.