My husband and I are currently separated and have been for about 2 1/2 months. I’ve asked him several times what he wanted to do with the home and he hasn’t said anything. I’m currently paying for the mortgage and another place to reside, he also pays for the other half of the mortgage. I sent an email a couple of weeks ago asking how long he needed to find someplace to stay because his behavior was erratic and impulsive, and I could no longer see any type of reconciliation. He stated that May would be his last mortgage payment and he wanted nothing more to do with me and to figure it out. Both of our names are on the deed and the loan for our home. He asked me to remove him from the deed on the home. Can he do this? Is there anything I have to pay him if I refinance? I plan to refinance on my own and rent out my home.
Also, I want to move me and my two small children to another state where I have support, I’m not from NC. I’m here alone, without any family. We don’t have a separation agreement or a schedule for our kids because he will not go along with what I have, no agreement at all. He just calls when he wants the kids. I want stability and consistency for my kids, which is why I want to pay an attorney to assist with child custody. Can I leave the state permanently without child custody in place legally?
The only way his name can be removed from the deed on the home is for him to sign a quitclaim deed conveying his interest to you. This would need to be done contemporaneously with a refinance of the mortgage. Depending on the net distribution of the marital assets and debts, you may owe your husband money in order to equalize the values of that distribution.
This sort of arrangement needs to be in a separation agreement or equitable distribution court order so it is binding and enforceable.
It is best to have a custody schedule in place before moving out of state. Your husband could obtain an ex parte emergency court order if he was able to prove to the Court that you left the State of NC with the minor children for the purpose of evading the jurisdiction of courts in NC.
The best way to obtain stability and consistency for the children is to have a court order for custody. If he won’t agree to work this out by consent, then you can file a custody action against him.
Anna Ayscue
Attorney with Rosen Law Firm Cary • Chapel Hill • Durham • Raleigh • Wake Forest
Rosen Online | Unlimited confidential access to a North Carolina attorney for $199/mo - click here
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.
Thanks you! My spouse does not want to go to court to handle anything dealing with child custody. He says he wants to handle everything between him and I. However, he doesn’t want to complete and sign a separation agreement. I prefer to have my children on a schedule and have them on a routined system and stable as my daughter will begin her first year of kindergarten this upcoming school year. This separation is already enough trauma for her (in my opinion), I’d rather just have a binding contract so we can have joint custody and have them on our elected days. He doesn’t want to do either. I’m leaving the state and he’s now stating he’s leaving too. I don’t know what’s the best decision. He’s not giving me any options here. I don’t trust him enough not to have anything in writing set in place for child custody between us.
In that situation, it is best to have a court order for custody. However, the court order can be entered by consent, and you and your husband can negotiate it outside of court. But by filing a custody lawsuit against your husband, it will force him to negotiate with you.
The advantage to having a consent court order for custody over a separation agreement is that it is enforceable by the contempt powers of the court rather than having to file a separate lawsuit to enforce a separation agreement. A court order for custody can also be helpful in the event the custody schedule needs to be modified in the future. And it can prevent a claim for ex parte emergency custody if you move out of state with the children.
Anna Ayscue
Attorney with Rosen Law Firm Cary • Chapel Hill • Durham • Raleigh • Wake Forest
Rosen Online | Unlimited confidential access to a North Carolina attorney for $199/mo - click here
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.
Yes. If you and the other parent reach a custody and child support settlement before a court date comes up or even before any litigation is filed, that agreement can still be written into a “consent order” and entered by the judge with the consent of both parties. Consent for a court order is shown by both parties’ notarized signatures on the original document.
Anna Ayscue
Attorney with Rosen Law Firm Cary • Chapel Hill • Durham • Raleigh • Wake Forest
Rosen Online | Unlimited confidential access to a North Carolina attorney for $199/mo - click here
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.
Okay, great. Thanks! This all should be done before he moves out of the state I’m assuming? Also, can he and I both do joint custody and the children primarily reside with me? I do not want to take away any rights from him regarding our children. He’s good with them physically, he and I just aren’t great. With asking for joint custody will that not allow me to get child support as he’s moving to another state in a couple of weeks?
It would be ideal if the agreement is written into a court order and signed and notarized before the father moves out of state, but it can still be entered after he moves out of state.
With no concerns about either parent and their parenting ability, then joint legal custody (equal decision-making authority and all major decisions must be mutually agreed) and primary physical custody to one parent would be normal in your situation where one parent lives far away from the other.
Joint legal custody will not affect child support. Child support is based on physical custody and the amount of overnights with each parent. If you will have the minor children in your care for at least 243 overnights a year, then you would be considered to have primary physical custody for child support purposes (and Worksheet A would be used), and you would likely be entitled to monthly child support from the father.
Anna Ayscue
Attorney with Rosen Law Firm Cary • Chapel Hill • Durham • Raleigh • Wake Forest
Rosen Online | Unlimited confidential access to a North Carolina attorney for $199/mo - click here
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.