Schedules of Property

At some point in the negotiations, you will need to relay your proposed distribution to the other side. Ideally this would happen before a mediation session in an attempt to agree on as many things, even small things, as possible before the mediation session. This is not giving away your case but rather making a settlement offer, especially if both sides have provided and exchanged a full financial disclosure.

If your spouse cannot refinance the mortgage, then the marital residence must be sold, whether your spouse wants it to be sold or not. The language in your separation agreement should be clear on this point. If you do not, then you could be forever be liable on the mortgage, regardless of any other agreements you have with your spouse.

If your spouse passed away and you were still on the deed and the mortgage and you were divorced, without clear language in the separation agreement requiring your spouse to refinance the mortgage or sell, then you would continue to own your 50% portion and his 50% portion would pass to his heir in his will or would pass through intestacy, but you would not own the full 100% if you were divorced.


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.

Anna, here I am again with another question. I forwarded an email to spouse’s attorney asking whether or not spouse is able to secure refinancing. I stated that I would like a response prior to presenting my offer of settlement. He emailed me back after a week stating that he had heard from his client but needed “clarification”. It has now been another week and I have not received a response. Day before yesterday I emailed requesting an answer but have not received one. I did mention in my email to spouse’s attorney that his client has actually had 6 years within which he could have secured refinancing if keeping the home was as important to him as he says that it is. Help? Should I go ahead and send my proposed settlement? My settlement goes something like this, I do not want any of the house contents so I am giving spouse my 1/2 of contents. Likewise, since spouse has had use of contents for past 6 years and now will have all the contents, I am requesting that he take what would be my 1/2 share of the only joint credit card balance as it represents all the costs associated with purchasing the furniture/furnishings in the home. So the only item left is the house. Spouse’s attorney is refusing to agree that there is equity in the home because he wants to use the date of separation 6 years ago as the value date and as of that date there was very little equity in the house as we had just purchased it 2 years prior to separation. My contention is that there is equity from 2014 to 2020 that I should receive a portion of. His client has paid the mortgage during the 6 years so my proposal is that his client be given a form of credit for the principal portion of the mortgage payment for those 6 years from the equity and the balance after that deduction for principal mortgage payments be divided equally. Short of an appraisal, I did have a real estate agent prepare a comparative market analysis and have used an average of the range of fair market value to establish the fair market value of the home as of now. What would you suggest at this point to keep this moving forward? Thanks again.

Thanks for the clarification. In this situation, do i just mark on the copies any changes and submit or can i just request mediation and discuss chsnges then. In other words do i have to reply to proposed inventory schedules ahead of mediation. Also i have requested that spouse refinance with cash out option in order to remove my name from mortgage and pay off joint credit card bills. Should i return the proposed inventory of property prior to getting spouse to refinance house? His attorney has listed the house with no value as of date of separation which was true but house has now has equity of about $40,000. Spouse has been one in house paying mortgage; however i was forced to leave due to him threatening to kill my daughter and i. Have only returned twice to retrieve very limited personal items with sheriff present both times. Should i delay returning the inventory until he agrees to refinance? Thanks.

You can send your settlement offer without a confirmation that your spouse can refinance. Instead, you can assume that he is able to refinance because when you reach a settlement, it will be binding on him and enforceable against him.

If you have already provided one equitable distribution inventory affidavit, you do not need to provide another one unless you are providing an amended one because of an error on the first one. In any event, there is no need to condition sending an inventory affidavit upon a confirmation to refinance.


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.

I prepared my proposed settlement offer in more of an accounting format. One schedule shows value of marital assets and debts as of date of separation years (6) ago in which the debts outweighed assets leaving a negative balance. The second page shows the value of marital real estate as of this year showing the increase of value of propery less current mortgage balance which leaves a current amount of equity and he would be given credit for principal payments on mortgage before net equity were divided. My thought was to use these accountings to work from during negotiations and until an agreement had been reached and then a proper written settlement agreement prepared in writing to incorporate the negotiations. Am I reading this procedure correctly? In this case, however, i would be extremely surprised if spouse were able to qualify on his own to refinance. That is my reason for trying to find out if he has applied for refinancing. If he cannot secure refinancing on his own, i want to get a portion of equity in house now which he could perhaps get a loan or something like that to pay me my portion of equity. But that still does not get my name off mortgage. I doubt there would be much left if it was sold after closing costs, commission, etc.because he has lived in house these 6 years and an sure it is not in the best repair. Am i better off to get what equity i can now, and just agree to leave him in house with all expenses and upkeep and my name on mortgage/deed until he decides at some point in future to sell? But after divorce my ownership changes so if he were to die i would be continuing to fight this battle then with his family about selling? Thanks ever so much forbthe advice.

That procedure is correct and acceptable to negotiate using balance sheets and draft a separation agreement based on the settlement of the balance sheets.

It is standard for one party to refinance the house (even if that party needs to a cosigner), and if that party cannot refinance by a certain deadline (usually 90-180 days from the execution of the separation agreement), then it is standard for the separation agreement to state that the house be sold immediately and the net proceeds divided. Otherwise, in order to be paid your share of the equity in the home, it would have to come from another source, and if there are no other assets available, then this is the only option.

It is strongly not advisable to continuing co-owning the home after the divorce without this issue settled in equitable distribution either via a separation agreement or a court order. If he were to pass, then you retain your one-half ownership and his one-half ownership would pass to his heirs, and it could be a very difficult and messy situation to get any payment from the house.


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.

Anna, Need some instructions on what to do regarding the fact that I have not received any information at all from Plaintiff’s attorney regarding my proposed settlement offer. On 10/12 I sent my offer of settlement to the plaintiff’s attorney. Next day I received an email asking me to clarify my bottom line amount for settlement. I responded that same day. Two weeks passed so on 10/27, I sent a request for the status of his client’s review of my settlement proposal. Plaintiff’s attorney responded by saying that he “forwarded my emails to his client”. As of last Friday, still no response so I sent another email bringing to the Plaintiff’s attorney’s attention that 3 weeks have passed since I sent the settlement agreement and that I felt Plaintiff was unnecessarily stalling. I reminded the attorney that I have provided his client with all the information he needs to either accept my proposed settlement offer, make a counter-offer, and/or make arrangements to pay for and schedule mediation if his client so desires to enter into mediation. The next day, I again received a response from Plaintiff’s attorney that he has forwarded my email to his client. [Keep in mind that Plaintiff has known all of my requests since way back in 2014 when I had an attorney (at that time) present a proposed settlement agreement to Plaintiff then which he ignored and subsequently fired his attorney]. So my questions are: (1) how long is a reasonable amount of time to wait for Plaintiff to respond to a settlement offer and (2) in scanning the General Statutes, it seems that there is a Motion of some sort I could possibly file regarding stalling? Or as a minimum, could I send an email to Plaintiff’s attorney advising him that, “unless I receive a response to my settlement offer by a certain date, I intend to file a Motion to ? pursuant to GS ? for his client unnecessarily stalling the proceedings” or would you refer to Plaintiff’s failure to respond to the settlement offer? I do not have an attorney now due to financial difficulties and being unemployed due to the pandemic so I am trying to handle this on my own. As always, I appreciate your ongoing support and this forum.

It can takes weeks, sometimes months, to get a response back from the other side. It depends on the other party, the other attorney, and how quickly or slowly they choose to work. It’s not unreasonable to not have a response only one month after sending a settlement offer.

There is no motion you could file to allege that the other party is stalling. You would have no evidence of them stalling either. Since settlement negotiations are not required, your only other recourse is to schedule a trial date which will put some pressure on the other party to settle or at least attempt to settle in good faith before the trial date comes up.


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.

Anna, back in November the Plaintiff (husband), through his attorney keeps stating that Plaintiff wants the house but has yet to make any effort/progress to refinance, doesn’t want the furniture since the one remaining joint credit card reflects the cost of the furniture and Plaintiff thinks if he says yes to furniture he will have to pay off the credit card. The furniture was purchased back in 2012 so there is no way he could recover enough to pay off the credit card balance. Plaintiff also refuses to acknowledge any equity is due me from the marital home for the period of time from separation until now which is a period of 7 years. So in December I sent a follow up email to his attorney asking questions again as to whether or not he has made any effort to secure refinancing, etc. and did not receive a response from his attorney. Today I sent another email asking about the status of the case and received a reply that he, the Plaintiff’s attorney has filed a Motion to Withdraw from the case and alleges that he has mailed a copy to my post office box. My question to you is, now what do i do? Thanks.

Your husband’s lawyer is requesting from the court that he be released from the case as the attorney of record. He is your husband’s lawyer until a judge signed an order to withdraw. Once the judge signs the order to withdraw, then your husband will be representing himself and you would deal directly with him on your case unless or until he hires a new lawyer.

If your husband is refusing to cooperate with you, you can try mediation on a voluntary basis if he is willing, but otherwise you would have to schedule a trial date for the equitable distribution issue as that would be the only way to move forward with someone that is not cooperating in negotiations or refuses to change their position for settlement.


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.

OK, so I never received a copy of the Motion to Withdraw that my husband’s attorney filed and his certificate of service does list my correct mailing address. I asked the Court to email me a copy which I just received. The Motion states that the Plaintiff (husband) says he does not wish for the undersigned attorney to continue representing him and the next sentence says that the Plaintiff has not performed his financial obligation as set out in contract of representation. A hearing has been scheduled and I received (from the Court not the attorney) a copy of the Notice of Hearing. I am assuming this is standard procedure and the attorney will have an Order which he hopes the Judge will sign. Do I need to be present? More importantly, now what. My only option is to hire a mediator? Thanks for your ongoing help.

If the Notice of Hearing is solely for the motion to withdraw, then you do not need to be present however, if it’s a virtual court session, it doesn’t hurt to log on and observe and let the judge know that you are indeed there. The judge will most likely enter the order allowing the attorney to withdraw.

If your husband is not complying with his obligation to produce financial documents, then you can serve him with formal discovery (interrogatories, requests for production of documents and things, etc.).

Securing a mediation date will be helpful if you have all of the financial documentation that you need and your husband is willing to participate in good faith to resolve the issues.


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.