Separation agreement - 6 months before moving out?

If you hope to move out of the family home that you and your wife both are listed as owners ($100K is still owed on the mortgage). What timeline is best to have her presented with a separation agreement, if I plan to move out and hope to have a separation agreement in place beforehand?

It is our family home, I am strongly considering signing the house (valued at $350K) over to her, but she will have to take over the mortgage payments, etc, and the house will be hers and I move on. Our 3 children are each over 18 years of age, so I am not offering to pay her any alimony but instead will let her have the house, if she wants it.

Then I’ll need to find a new place to live, hopefully July 1, 2024. My wife and I both work, and make about the same salary, with sacrifice we both earn enough to pay the mortgage, etc, with making other milder sacrifices. Unsure how my wife will respond, however, what advice do you have about my planned desires and its timing.

Respectful thanks.

The sooner you can present a settlement offer or separation agreement the better. It often takes time to negotiate the finances in a separation.

In your separation you will want to make sure that your wife refinances the mortgage by a certain deadline in order to remove you from all responsibility. You will also want 50% of the marital equity from it.

Other things to consider about dividing houses in a separation are to include a forced sale provision in case your wife does not refinance the mortgage in time with details such as who the realtor will be, how to handle repairs, how to decide the list price and price reductions, who will pay all utilities and when will those be transferred to the individual name of the spouse keeping the house, who will be responsible for drafting and recording the deed, when will the deed be recorded (you don’t want to record the deed conveying your interest to your wife if you’re still on the mortgage), etc.


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.

Thank you, Anna, for sharing your insight.

My wife and I have little in savings, and we do not have high salaries. So if either one of us has to refinance the house and then pay 50/50 equity to the other spouse then I believe the mortgage payment and cost of owning the home will increase considerably.
Therefore, if I offer my wife the home still having her to refinance buy allowing her to keep the 50/50 equity payment, then I believe the mortgage payments will stay about the same. I am looking at moving on, and starting over. How does this scenario sound?
Respectfully,

That is possible but you could be leaving money on the table: you’re entitled to 50% of the marital equity in the marital residence unless an equal distribution is not equitable under the circumstances.

This of course must be balanced with other assets like savings, retirement, and vehicle values along with marital debt.


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.

Thank you, Anna, that is excellent advice and I appreciate how important it will be for me to be financially wise. Furthermore, how favorable will it be for me to present a separation agreement to my wife for her to refinance the house into her name and then pay the 50/50 equity to me so then I’ll have the money to move out, I will greatly need this money to be able to afford to have my own place. How practical is it for me to present those facts, because then I’ll be waiting for my wife to agree to refinance, etc? What is the best way for me to get want I need in this separation agreement?
Please share your thoughts.
With appreciation.

You can present her a separation agreement that requires her to refinance and pay you a distributive award (put the exact amount to be paid in the separation agreement) by a specific date. You should also include that the house shall be sold if she fails to refinance and pay you the exact sum of money by the specific date.

She will then need to negotiate the terms with you. If she ignores you, you may need to file a lawsuit for equitable distribution against her in order to force her to handle the distribution of marital property, the refinance of the house, etc.


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.

Good afternoon, Anna, thank you for providing me greater clarity. If I understand correctly, my spouse and I, living in the same house, may agree, sign and file a separation agreement that forces our home to be divided 50/50, and then with that money purchase my own home before the separation date. Furthermore, how common and practical is it? What is an equitable distribution? How much does an equitable distribution cost? Therefore, if the marital separation agreement is plan A, then is equitable distribution plan B, and am I able to fill an equitable distribution when my spouse and I currently live in the same house.
In gratitude.

You can negotiate and execute a separation agreement while still living together but the separation must occur within 30 days of the date of execution of the separation agreement.

Depending on how you will be paid in a buyout, if that is what is negotiated, it can take a few months for the other party to gather the funds (for example: they may need to refinance a mortgage or obtain a home equity line of credit), which would necessitate a separation prior to receiving the buyout.

Equitable distribution is the equitable (presumed to be equal) distribution or division of the marital assets and debts, which are all assets and debts acquired between the date of marriage and date of separation.

For more detailed information on equitable distribution and how it works, check out our article Equitable Distribution - What You Need to Know.


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.

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