As far as I know, in North Carolina, an absolute divorce simply ends the marriage. No property distribution takes place, or anything like that.
So the answer to your question is no.
You do not have to file for E/D, a properly drafted SA&PS will probably have something to the effect of stating that the agreement is in place of E/D proceedings.
It would probably behoove you to talk to an attorney who can review the proposed SA&PS you were sent, and can advise you of your rights.
If ed hasn’t been drawn up by her, you MUST bring it in BEFORE the divorce is final. Once the divorce is final, you won’t be able to bring it up at all. ED doesn’t have to be settled at the time of divorce, but it does need to be filed for.
I would say that this offer was for spousal support or alimony…? The courts will not automatically divide marital property. You really should contact an attorney for a consultation. They may be able to work something out about the payment but I would advise you not to sign anything until an attorney reads over the agreement you were presented with.
I also suggest that you can respond to the settlement offer with an offer of your wife will not have to divide the equity in the marital home providing that she pays you X amount monthly as spousal support. Or that you would accept the money offered instead of ed and beginning at the time of absolute divorce, you are paid x amount for alimony…I still believe that you should get an attorney to consult on this, read over their offer and make suggestions on what your rights are and what you can do at this point. Make a few phone calls and see how much a consult is…let them know that your stbx has all of the money, will not give you access to it and you are dependant spouse…see what they tell you.
If the court has been asked to divide marital property, they will divide all marital property equitably. Generally, equitably means equally. If her entire 401(k) has been accumulated during the marriage, you would generally be entitled to half. If you are not comfortable with the offer that has been made to you, you can make a counterproposal. I would advise you to meet with an attorney to review your rights as soon as possible.
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
301 McCullough Drive
Charlotte, NC 28262
Main Phone: (704)307.4600
Main Fax: (704) 9343.0044
Durham & Chapel Hill Office
1829 East Franklin Street
Chapel Hill, NC 27514
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.
After the responses to my questions on this forum, I am realy freaked out. My wifes attorney offerd me a cash settlement of $50,000.00 when my wifes 401k is in the hundreds of thousands. I have never recieved from them an ED claim. Now I don’t know what to do. If it cost alot of money to file for ED I don’t have it. Will a judge automaticly award me 1/2 of the 401k and any other marital property without an attorney?