"HOW" do I leave?


#1

Dear hard2battle:

Greetings. The first step, if you are still living together, is to hire an attorney and have them at least begin the negotiations for the final settlement prior to moving out. Now, specifically to your questions.

  1. The split occurs as soon as you can agree to the same. If you can agree to the split of property in a separation agreement prior to you moving out, it can occur then. Do not wait for the date of divorce, but work it out, through an attorney if necessary, prior to then. If you wait for divorce, you will be forced to either file a lawsuit or you will lose your right to equitable distribution. If he sells anything before you divide it, you are entitled to half of the value, regardless of his sale.

  2. You should NOT wait until the time of divorce to divide your property. You should work out the separation agreement now. if you do agree to divide up the retirement, then you will need a QDRO. He will always be responsible for all assets he depletes or hides away.

  3. Yes, he will be required to remove your name from the mortgage if he wants to stay in the house, or he will have to sell the house if he cannot refinance. Yes, you would have to agree on the selling price if he has to sell. Thank you.

Janet L. Fritts
Attorney with Rosen Divorce
4101 Lake Boone Trail, Suite 500
Raleigh, North Carolina 27607
919.787.6668 main phone
919.256.1665 direct fax

10925 David Taylor Drive, Suite 100
Charlotte, North Carolina 28262
704.644.2831 main voice
704.307.4595 main fax

ROSENDIVORCE.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 but a full discussion with an attorney should be undertaken before taking any action.


#2

Thanks for your reply, but I have more questions in response!

  1. Do we hire one attorney together to create our separation agreement? I don’t think we will agree on these issues…we don’t agree about anything else. I assume this attorney would need to be different than our child custody attorney since they represent us individually…is that correct?

  2. We are currently still living together, but I think it’s in our best interest as well as our children’s to separate as soon as possible. Does the separation agreement need to be done prior to my leaving? Without this agreement prior to leaving the marital residence, it is my understanding he could get me for abandonment, or there could be an unequal distribution of property. Is this true? Sometimes, I am just ready to leave and give up everything! It just doesn’t seem important enough to stay for sometimes.

  3. Does my attorney for child custody have to be located in the county where I reside? I have heard two different stories…yes and no answers.

  4. Our bank accounts are separate. We pay bills separately. I pay less than he does, but he makes more than I do. Does that have any effect on the 50/50 split? I have been told it does…

  5. In order to get 50/50 of any of his accounts, stocks or retirement, do I have to provide the info? Since our money is not together, I have no idea what he has or does not have. I think he has actually done something with his retirement money already, but I don’t know what. What if he somehow transfers the money to one of his relatives so that I don’t know about it or can’t get to it? Does that mean he no longer has to split 50/50?

I apologize for all of the questions, but my husband constantly tries to scare me or threaten me with these issues constantly.

I look forward to your reply. Thanks!


#3

Dear hard2battle:

Greetings. Yes, an attorney can only represent one side of a married couple, so you will each need your own attorney. You cannot have one “child custody attorney” unless you and your spouse are suing a third party for child custody.

Yes, the separation agreement can (and should) be done before moving out if possible. Yes, you are correct on abandonment, unless you sign a non-abandonment agreement prior to moving out.

If you are in court, then you may want an attorney that practices in your county. Otherwise, no, you do not need an attorney that lives in your county.

Yes. You split EVERY account, regardless of whose name the account is in.

He will just have to disclose his accounts. DO NOT sign any agreement until you see his documents on all accounts. Best of luck.

Janet L. Fritts
Attorney with Rosen Divorce
4101 Lake Boone Trail, Suite 500
Raleigh, North Carolina 27607
919.787.6668 main phone
919.256.1665 direct fax

10925 David Taylor Drive, Suite 100
Charlotte, North Carolina 28262
704.644.2831 main voice
704.307.4595 main fax

ROSENDIVORCE.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 but a full discussion with an attorney should be undertaken before taking any action.


#4

I have been married almost 9 years, and I have two children. I have several questions on how to leave my husband…I know it’s not as easy as 1-2-3. Here it goes…

  1. When does the 50/50 split of marital property occur, at the time of separation or divorce? My husband does not agree with this split…he thinks the majority of the property belongs to him. What if he sells the property when I leave?

  2. It is my understanding that I am entitled to half of my husband’s retirement, but I also understand we have to be separated one year and one day before filing for a divorce. What if he cashes the retirement in or transfers it into something else? He will do as much as possible to make sure I get a little as possible.

  3. My husband wants to separate, but he refuses to leave our home. That means I have to find a new place to reside with our two children instead. My name is on the mortgage. Will he be required to sell the home if I leave? Will we have to agree on a selling price?

I appreciate your taking the time to help me with this matter. I am new to this process, so I need to learn/understand what happens. Thanks!