We have been separated for 5 years now. We own two houses, one he lives in and the one I live in with our two children. My question is, can we keep the houses as is under both of our names, he pays his mortgage and I pay mine and stipulate in the separation agreement that we will each refinance the mortgages within a year. Are we able to do this and move forward with the divorce?
Yes, if this is an equitable property settlement, then it is possible to enter into a separation agreement that says Husband keeps one house and mortgage as his sole and separate property and Wife keeps the other as her sole and separate property.
The separation agreement will need to state that any joint mortgages shall be refinanced within a certain amount of time (usually 120-180 days) into the sole and separate name of the party keeping the corresponding home. The separation agreement should also state that contemporaneously with the closing on the refinance, the other party shall execute a quitclaim deed conveying his/her interest to the party keeping the house.
Once a separation agreement is fully executed which fully resolves equitable distribution, then you can file for absolute divorce.
You should not file for absolute divorce until either equitable distribution is fully resolved or the claim for equitable distribution is pending with the courts at the time the absolute divorce judgment is entered.
Anna Ayscue
Attorney with Rosen Law Firm Cary • Chapel Hill • Durham • Raleigh • Wake Forest
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