Property Distibutions


#1

North Carolina is an Equitable Distribution state which means that all of the property acquired during the marriage is marital property and is subject to being divided equitably. If he can prove that she was a spendthrift spouse he may get more than 50% of the marital estate.

P.S. Please feel free to bring up this or any other topic on our live call-in show every Wednesday at 11:00 a.m. EST. Visit radio.rosen.com/live for details

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

Charlotte Office
301 McCullough Drive
Suite 510
Charlotte, NC 28262
Main Phone: (704)307.4600
Main Fax: (704) 9343.0044

Durham & Chapel Hill Office
1829 East Franklin Street
Building 600
Chapel Hill, NC 27514
(919) 321.0780

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 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.


#2

Info:
My husband and I are separating… myself and our 2 children are moving into an apt. and they will return to their father after 7 days which will begin our 50/50 custody arrangement that we have come to an agreement on.
Other than basic utilities, he has 1 small $1800 loan that is in his name , and 2 mortgages;
1 on our current residence
and 1 on a rental property that rent is being collected on to cover almost the payment (we have to add $200 to the rent to make the payment, but that is temp. only thru 3/09…b/c getting behind on the payement when we couldnt find renters).

I make approx 1/2 of what he makes in 1 year… therefore it was my decision to be the one to not live in the home…
It is agreed that if the home ever sales, the difference of the value NOW and payoff NOW will be split 50/50… anything over will be his b/c he is keeping the home, and has an interest to improve its value etc.

Question #1 am I responsible for ANY part of the Mortgage on the home once we (kids & I) move out? (mortgage loan is in his name and mine)… … we have agreed that he pay the payment, im just wondering legally and same for #2
Question #2 am I responsible for ANY of the $200 extra we have to pay ontop of what we collect in rent, for the 2nd mortgage payment?.. same terms apply to that property as far as if it ever sales… i have no interest in the property value once the separation papers are signed… but thru that date I should receive 1/2 of the profited difference of value v/s payoff
Question #3 if the answer to these questions are, "no, you are not responsible’ is this only IF its explained in the separation papers?


#3

This is why you have a signed and notarized separation agreement.

If he has agreed to pay the mortgages and he signs an agreement to that effect, then he is responsible for paying. HOWEVER, the bank does not care what your papers say. If it’s a joint mortgage (your name on it too), then if he does not pay, they can come to you for payment. If you have an agreement, and he does not abide by it, you can take him to court for breech of contract.

Having a separation agreement MAY help in the case that he doesn’t pay as far as the financial institutions go. But a joint loan is a joint loan until it’s refinanced.

Make sure everything you agree on is written down on paper and signed by both of you…especially the custody issues and the mortgage payment issues. DO NOT take a verbal agreement on anything–no matter how civil and cordial you may be to each other. A verbal agreement holds no water. A signed and notarized one does.


#4

Thank you for the response
We completely intend to have all of this in the papers, but it has been said to me from many people to not rush in to signing a separation agreement b/c there might be something we are forgetting… we are planning on filing our own papers, after consulting with attorneys (each of us have a separate attn) to save $$… so our intentions are to work on the agreement together, take a copy each to an attn. get their input…come back together… fine-tune it, and then file it
this will more than likely happen after the children and i have moved… and i truly feel that he will not drag our children in this and renig on our agreement to share 50/50… but i do see the point in doing this in a timely manor.


#5

soccer_mom,

  1. If you are a co-debtor on the mortgage then the mortgage company will hold you responsible for this debt until your name is removed via a refinance or sale. Even if there is a contract between the two of you that says that your spouse will pay, the mortgage company can and will sue you or foreclose on the house if the payments are made. This will affect your credit rating. If there is a contract between you stating your spouse will pay you can sue him for damages, but the contract will not stop the creditors. If you are asking if you must give him money to pay the mortgage, that would depend on whether you owed him a duty of support, based on the income figures you included in this post, it appears you do not.

  2. Same answer as number one. You should consult with an attorney before signing the agreement you have described in this post. Do you really want to give him all the control as to when the house is sold? You may never receive any money from these properties and you will have an ongoing financial tie with your spouse, this is almost never a good idea.

P.S. Please feel free to bring up this or any other topic on our live call-in show every Wednesday at 11:00 a.m. EST. Visit radio.rosen.com/live for details

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

Charlotte Office
301 McCullough Drive
Suite 510
Charlotte, NC 28262
Main Phone: (704)307.4600
Main Fax: (704) 9343.0044

Durham & Chapel Hill Office
1829 East Franklin Street
Building 600
Chapel Hill, NC 27514
(919) 321.0780

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 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.


#6

Hi. I have been asked by my friend to help put together his finances (I am an accounting/finance professional). One thing I noticed is that throughout his marriage, his wife ate through the savings he had prior to the marriage as well as funds held within his business that was formed prior to the marriage (and that were in the business prior to the marriage).

My friend is contemplating divorce. To put this in perspective, over 10 year of marriage, he has made in excess of 3,000,000 and they hae approximately 400,000 in debt to show for it.

Does this get taken into account in Property Distribution? Especially since 2/3 of all spending was done by his wife, who does not work? It was my understanding that since NC was not a community property state, that parties should have left the marriage in a similar financial position that they entered into.