Legas issues with property


#1

Essentially, the two of you have orally modified your contract. If you had an attorney draft your agreement, it probably says that, even if the two of you orally modify the agreement it is only temporary and it does not change your ability to enforce the agreement as written. If that is the case you could force her to comply with the terms of the original agreement and your plan would work, if that is not the case, then you could end up in the midst of litigation. You should review your agreement with an attorney before taking any action.

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
Suite 510
Charlotte, NC 28262
Main Voice: 704.307.4600
Main Fax: 704.943.0044

1829 East Franklin Street, Bldg 600
Chapel Hill, NC 27514
919.321.0780 main phone
919.787.6668 main fax

ROSEN.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

An attorney did not draft the separation agreement. I downloaded a generic form offline and modified it to fit our situation.

Number 28 in the agreement states:

“Amendment- This agreement can be altered and amended only by further written agreement duly executed by the parties. And failure by either party to specifically perform or to enforce performance exactly according to the letter of this Agreement shall not constitute an alteration of the same by way of enlargement, waiver, reduction, estoppel, or otherwise, unless confirmed in writing by the parties. It is understood that the parties may, by mutual agreement, make temporary modifications from time to time as conditions require, but this Agreement shall nonetheless be binding upon the parties as written, except in the event of a material breach.”

So does that mean I can send the certified letter? Thanks!


#3

Based on what you posted about your Agreement it does entitle you to retake possession of the car. The certified letter is fine based on what you have written here. I cannot advise you fully without having had the chance to review your entire Agreement.

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
Suite 510
Charlotte, NC 28262
Main Voice: 704.307.4600
Main Fax: 704.943.0044

1829 East Franklin Street, Bldg 600
Chapel Hill, NC 27514
919.321.0780 main phone
919.787.6668 main fax

ROSEN.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

Thanks so much!


#5

My separation agreement from Dec. 5th 2005 states:

"9. Automobiles. The parties are the owners of the following automobiles:

A 2000 GMC Jimmy automobile and a 2004 Kia Optima; which are titled to Husband’s name and driven by the Husband. The title to these automobiles is encumbered. Husband will assume the responsibility of paying for teh automobile payments. (wife will have use of the 2004 Kia for a period of 20 days from the 1st of Dec. to the 21st of Dec.) At the end of that time wife will have to provide own vehicle and insurance. Wife conveys all of her right, title and interest in and to the aforementioned automobiles to Husband so that the said automobiles shall be and become the sole and separate property of the Husband. Henceforth, Husband shall be soley responsible for all maintenance, repairs and insurance premiums for said automobile, and shall render wife harmless from and against all obligations, claims and expenses, including reasonable attorney’s fees, arising out of or relating to any of these obligations."

Now, wife has kept the Kia up to this point, continued driving it, and paid the payments to me which are debited out of my account by the lender. We verbally agreed that when I refinanced my vehicle (to get her name off which she cosigned for) that she could then trade the car in/refinance/or give it back. The time has come for that, and she is not moving forward with doing anything with the car or giving it back to me. She has made 3 late payments to me in the past year. And according to the separation agreement I am the one supposed to be keeping the insurance up on it. She does that now but I cannot trust her to keep doing that and I feel the situation I am in by letting her keep the car is just too big of a liability for me. I am thinking of sending her a certified letter giving her 60 days to do something with car (getting it out of my name) or I am coming to get it. Is this legal? Is this the right way to go about doing this?
Advice from an attorney would be great thanks!