Moving out of state, protection of assets in case of separation


#1

I just received a job offer that requires me to move cross country and I’m contemplating on taking it. If things don’t go as planned, how can I protect myself for not losing property etc. We do not have kids.

I am not ready to file but I do want to figure out best way to protect myself if things were to go south.

1-We own a house and his name is on the deed, I had to put his name as at the time I was on a green card and having the name on the deed would help with my immigration status. Also, I was told it doesn’t matter since we were already married at the time. However, the house was bought by my mom as a gift to me only. I have the bank statements showing the money in my personal account before the marriage. It is fully paid for and there’s no mortgage on it. Would there be a way to work out a situation where I just get the money from the house, he can apply for a loan against the house, and he can keep the house? Or is it 50/50 division no matter what?

2- Since he will be staying in the house while I move for my job, would that mean abandonment by me if we were to file? How can I make sure this is not the case?

3-Before I move out, can we maybe write up an agreement for separation of items even though we will not be filing to have as evidence for a later date?

4- If I am at another state for more than 6 months, would I need to file through that state? How would that affect the proceedings? I think for NC state you need to be separated for a year before filing, if the state I’m moving to doesn’t have such a thing does that supersede it?

5- I keep hearing about absolute divorce and tried to read up on it but can’t really understand. Does that mean, you have everything already figured out between two parties (separation of property etc) and just want to separate without having to go to court etc? If not, is there a way to do something like this?


#2

(1) If the deed is jointly titled and the house was acquired during the marriage, then it would be presumed that your separate property contribution (from your mother) was a gift to the marriage and the house would be marital property subject to being divided in equitable distribution. However, this presumption can be rebutted with clear, cogent, and convincing evidence. If only your husband’s name is on the deed and the house was acquired during the marriage, then the house could still be considered your separate property, or have a dual classification of separate property and marital property, since the source of funds used to purchase the house were a gift to you only and it sounds like you can prove that it was a gift to you only. It is possible for your husband the keep the house and buy you out of it.

(2) The best way to avoid any abandonment claims is for you both to sign a non-abandonment agreement (stating simply that you are moving out of the marital residence, it is both of your intents to separate with the intent to remain separate and apart in order to dissolve the marriage, and that you moving out shall not be abandonment) and to sign in front of a notary. You can also sign a full separation agreement dividing the marital estate and addressing alimony (an award of alimony or a waiver) and there would be no need for a non-abandonment agreement.

(3) Yes, you can do this is a partial separation agreement (that would just divide the personal property items) or execute a full separation agreement.

(4) You would not be able to file for an absolute divorce in NC if you have not been a resident of the State of NC for the previous 6 months. Your husband could still file assuming he continued to reside in NC. You will need to check with a family law attorney in your new state about the possibility of filing for an absolute divorce there instead.

(5) You can resolve all equitable distribution issues in a separation agreement without going to court and before an absolute divorce is entered. Absolute divorce is the claim and court proceeding that officially dissolves and ends the marriage. However, in the event that you do not have a separation agreement fully resolving equitable distribution and you became eligible to file for absolute divorce, then you should also file a court claim for equitable distribution. Otherwise, once you are divorced, and without a fully executed separation agreement or an equitable distribution claim pending, you can no longer have the courts divide the marital property.


Anna Ayscue

Attorney with Rosen Law Firm Cary • Chapel Hill • Durham • Raleigh • Wake Forest

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