I was looking at and pondering the NC stat.
[b]“Acts of either party to maintain, preserve, develop, or expand; or to waste, neglect, devalue or convert the marital property or divisible property, or both, during the period after separation of the parties and before the time of distribution.” N.C. Gen. Stat § 50-20 (c)(11a).
This brought me to a few questions, but I’ll start with two on this post.
Waste, neglect or devalue, really stuck out in considering an unequal distribution, In my filed complaint for ED, Alimony etc… I did in fact ask for an unequal distribution obviously in my favor, so here goes :
- If X is ordered to pay mortgage, pss and utilities, and instead stops paying mortgage (house goes into foreclosure) also stops paying all the other bills (including 2nd mortgage of equity loan- also in foreclosure) and only pays half of pss, & no utilities, threatens bankruptcy, but has not/did not file (maybe disqualified??) and house ends up in foreclosure sale before ED, leaving only the furniture, cars & retirement to “fight over” Can a larger portion of retirement be considered?
[b]BUT, if spouse is responsible for loss of house (and $80,000 in equity!!) because of will-ful non compliance(civil and possible criminal contempt?) of a court order because X was supposed to pay the mortgage, pss & utilities (X has a full time job & makes over $2000 from job, plus 2,400 in retirement with COLA increase and $1644 in disability )
2. would this now be an opportunity to receive 50% of retirement as an unequal distribution in ED and not go by the traditional coveture formula since 7 (or 4 if irr was not considered) of those yrs I assume would be considered “separate property” ?
This is a complex situation and has my mind constantly analyzing this NC stat and how it can work in my situation because of X’s responsibility for Marital waste concerning the house.
Your legal expertise will be a huge help on how to move forward and secure whats left.
THANK YOU for any help :)[/b]
To be honest, I’m having a hard time understanding the timeline regarding the military retirement, nor would I be an appropriate person to calculate the coverture formula. That being said, mediators are neutral third parties, that are not advocating for one side or the other. The mediator would not intentionally short you on his retirement.
It does sound as though N.C. Gen. Stat § 50-20 (c)(11a) applies to your situation. A judge would certainly consider his letting the house go into foreclosure a distributional factor and could cite that as the reason for awarding an unequal distribution in your favor. To start, if you have an order in place that requires him to make these payments, and he is not, I would file a motion and seek to have him held in contempt for violating the order.
As I was looking through the previous posts on this forum, I ran across this -
[b]Re: Interim equitable distribution
Postby Kathleen Putiri » Sun Dec 09, 2012 6:52 pm
In NC, we have a system of people’s court where individuals can take out charges against another person without a police officer involved. If he can find a crime he can claim you have committed, then yes, he can have charges taken out against you. It sounds that this is more of a civil suit than a criminal claim though.[/b]
My X was ordered to pay mortgage, pss, and utilities- he let the house go into foreclosure (stopped paying in Feb 2014) and is only paying half the pss, and no utilities.he has deceived us many times by claiming he was going to re-mod the mortgage… now here we are on the edge of our seat and a foreclosure sale date set for Nov. X has stopped paying all bills & will possibly file for bankruptcy. X has the means to pay the mortgage, pss and utilities (and even re-mod the loan) but decided to “go down with the ship” and start his new life off clear of debt…
We cannot get into a show cause until late Sept or October, due to the calender…
- So is this considered civil and criminal contempt?
- Can I take out a warrant for not paying Mortgage?
- Can I take out a warrant for not paying the full pss?
- can I take out a warrant for not paying utilities?
Kathleen’s response about people’s court is correct, although I’m not sure how it would necessarily apply to your situation. What crime has been committed? And what would you hope to accomplish by pursuing this through people’s court? It sounds like you want him to abide by the terms of your order, and the appropriate mechanism to enforce your order is by filing a motion for contempt.
If the order which is alleged to be violated is a civil order, a person can be held in contempt in he or she is willfully in violation. However, your ex can defend this by claiming he lacks the ability to comply and thus should not be held in contempt. Make sure you have proof that he has the ability to pay, and simply is choosing not to.
The line of demarcation between criminal and civil contempt is hazy at best. A major factor in determining whether a contempt is civil or criminal is the purpose for which the power is exercised. When a judge intends for the primary purpose of contempt to be preservation of the court’s authority and to punish the disobedience of its orders the result will be criminal. Grounds for criminal contempt can be found at N.C. Gen Stat § 5A-11. If however the judge’s intention is to provide a remedy to another party (i.e., make him pay mortgage, pss, etc.), the result is civil contempt which allows the person in contempt to purge themselves by following the order.
Thanks for your reply, I had no intention of going to peoples court since I have a show cause hearing finally scheduled, I just wanted some clarity on
pressing criminal charges without a police officer involved (if a criminal act was committed and what is defined as criminal) It’s my understanding though that if this had been a child support order then the magistrate WOULD have issued a warrant… (i talked to Magistrate here in my county). don’t seem right does it? so thanks!
Also thank you for the Stat, it helped a lot and I’m guessing §5A-11 (a)(3) would be suitable :
- (3) Willful disobedience of, resistance to, or interference with a court’s lawful process, order, directive, or instruction or its execution.-
I have proof of what you mentioned, otherwise I would not go down this road, I also intend to ask the court for X to pay Attorney fee’s for having to bring this to court.
Originally I had a show cause scheduled in March & day of court His attorney talked us into believing he was going to catch up on payments & re-mod ( he made a house payment THAT day to prove to us, only to find out 90 days later that the payment was reversed (Non- sufficient funds) and he had not made a payment since, after finding out about his lil trick, then he said he was going to re-mod… well that was a lie too … so here we go, but now house is almost over the cliff & too expensive for me to save (plus not receiving full court ordered pss is another factor)
X is working a full time job, receiving ret & disability (although not actually disabled) and making around $5000 and not paying ANY court ordered bills or even his own separate bills, his creditors are calling here! Bankruptcy court allows vets to file bankruptcy as long as they meet a 30% disability and he does, its a way out that i really think is unfair!
So would §5A-11 (a)(3) be the right one for me to also use since its willful disobedience and resistance to a court order?
Thanks for your replies!!
Yes, that statute applies to your situation. Keep in mind that most of the time in family law matters civil contempt is found more frequently than criminal contempt.