Protecting my rights with unresponsive spouse


#1

My husband left the home without notice and will not communicate with me. It has been 10 1/2 months and it looks like we will have to go to court to resolve property. We were married 25 years and he worked for the state all that time and retired 2 years prior to separation. I have worked for the state 15 years. Though we have asked through his attorney several times, they have not produced anything to even verify income except a few of his bank statements. (I have gotten what is called a Divorce Affidavit saying how much I have in my retirement and a statement from my HR dept stating my salary). My attorney says we should just wait 1yr and 1 day and file for divorce and equitable distribution all at the same time. I am very worried that I will forfeit my ability to ask for anything if we wait. But she says it will be “an open case” and since it’s unsettled that preserves my rights. Is there something that needs to be filed in court to preserve my rights since he is refusing to acknowledge us?
I also have much paperwork that shows he was emptying retirement accounts and cashing in life insurance policies prior to leaving the home.
He did tell us through his attorney that he wanted the house to be sold unless I wanted to give him $14000 and refinance it in my name. I said I would sell it but the home needed much work to be put on the market (he was aware of this) and I spent almost $5000 doing that. During that time he paid the house payment late each month and to avoid it being paid 60 days late, I paid the 1 payment myself. I finally told him the house was ready to be listed and I would pay the homeowners (which he did not pay and they put a lien on the home) but wanted to be sure he was going to pay the house payment so I didn’t throw away any money. He never responded. We told him several times through his attorney I could not pay again and the house would go into foreclosure if he didn’t pay at least 1 payment. His attorney said his client did not intend to pay the payments any longer and was willing to let it go back to the bank. I was really shocked because I had text him several times over the months saying I would help pay if he needed it while the house was having repairs and maintenance so we wouldn’t lose our good credit or equity. He never would respond. Now my credit is hurt and I cannot finance anything else so I did not put the house on the market and am trying to make arrangements to keep it through the mortgage Co and/or my bank. Not sure what I can do if he refuses to sign it over to me. Bottom line-how do I make sure I don’t lose my ability to ask for my share? (ps-does it make a difference that I can prove adultery?)


#2

Your attorney is correct in that you must file for ED before you obtain a divorce decree in order to preserve your ED claim. So, if you file for ED when you file for divorce, the claim will be pending when the decree is entered and therefore your claim is preserved. However, you do not have to wait until then to file for ED. You can go ahead and file now, and you probably should if it is doubtful that you will reach a resolution through agreement. It will take several months to get on the calendar, so the sooner you file, the sooner you can be heard. Filing for ED will also allow you to compel him to provide the financial documentation you need through formal discovery.

Adultery doesn’t matter when it comes to ED, but there are many other factors that do. See N.C. Gen Stat § 50-20©. One particular factor a judge will consider that applies to your case is N.C. Gen Stat § 50-20©11(a): “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.” If he is forcing the house into foreclosure, despite your efforts to save it and offers to pay, this will certainly be something the judge will give weight to at your ED hearing.