Separation Agreement/Property Settlement


#1

Do NOT sign anything that you do not agree to. If you need to have the agreement altered prior to you signing it, then have it altered. What you don’t agree to, ask him to change it. You do not HAVE to sign anything.

  1. You are entitled to 1/2 the equity. The proceeds from the sale of the home should be split and if you have an agreement that he would pay the expenses then you do not have to reimburse him using your portion.
  2. I’m not sure about the tax issue. I would hope that if you have been making payments to him, you have record of that and the agreement needs to reflect that.
  3. Child support and property distribution are separate issues and I suggest that you have it set in the agreement the amount he is going to be paying you for child support. Go by the guidelines on the home site because that is what the state would do. If you do not feel that he is using his “correct” income then do NOT sign the agreement with that amount. Make sure things like insurance and medical bills for the children are covered in the agreement. And I suggest a added line that any unforeseen necessary large expenses over $x ($100)amount is split between you. This would not include him taking the children on vacation, but if one had to have stitches…you would both be responsible for the bill. You can also add in any unnecessary expenses AFTER agreeing on them. Things like summer camps or special classes have to be agreed upon or the cost is not split.

You have some control in this. An agreement is just that. If you do not agree the smallest thing in those papers, then do NOT sign. If it makes you uncomfortable because something isn’t worded the way you would like, request that it be changed. The 3 week deadline he gave you may have been his way of trying to get things over and done with. Maybe he doesn’t want to pay his attorney to have them drafted again. My husband and his ex had their separation agreement drafted 6 times before they were both happy with what was in it.

He and his attorney are going to try to get you to agree with as little fuss as possible. The less they can give you, get you to agree to or work that they have to do, the better. You are entitled to have the agreement changed before you sign it. As long as you are not “just causing problems” and being petty. I would think they will negotiate.
I suggest writing in the changes you wish to make, write a note to him and give him the papers back saying that when those changes are made you will sign. Make sure to read through the entire agreement when you get it back so that other changes are not made that you didn’t request. There have been people post about that before. Be reasonable in your requests and the attorney and your ex will likely negotiate. Make sure you understand everything that’s in the papers also. Don’t sign anything that you don’t understand. Protect yourself and your children to avoid resentment in the future.


#2

Based on your post, it seems that your financial issues may be relatively complicated. At a minimum you should review your agreement with an attorney before signing anything. To answer your specific questions;

  1. You do not need to reimburses for half his living expenses since the date of separation. If he makes more money than you, he may owe you alimony and this should be addressed in the separation agreement. All of the assets you had on the date of separation should be divided. If he decreased the balance of the mortgage since the date of separation, then that decrease would be his separate property.

  2. You should receive credit for the tax payments you have already made.

  3. All of his income should be included for child support purposes, and he would generally not get a reduction in child support because of his expenses.

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.


#3

Thanks, Helena. So I do not have to reimburse him for half of his living expenses even if they relate to the marital residence? He contends that by NC law I am still responsible for the expenses related to the marital home until it is sold and that his proposal to reduce child support is not short-paying me but applying those funds toward my portion of the marital expenses. Is this right?

Tracie


#4

Under the equitable distribution laws both spouses can technically be responsible for the maintenance of marital property. However, it is highly unlikely that a judge would decide in his favor.

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.


#5

Okay, stbx has given me his proposal for a separation agreement & property settlement. His instructions were to review, sign & return to him in 3 weeks. There are several things in the agreement that I don’t agree with but want to know my rights legally since he is not likely to be willing to negotiate anything. Here are the issues:

  1. I and the kids moved out of the marital residence on 2/1/07 because he refused to leave the home (although he’s the one who no longer wanted to be married and now lives with his fiance while the home sits empty on the market). Prior to my leaving, he paid the mortgage and I paid the utilities. That’s how it was for the entire 7 years we were married. In the separation agreement he proposes that the net proceeds from the sale of the marital residence be split equally and that my share should cover the total expenses he’s incurred since the date of separation (mortgage, insurance, taxes, homeowners dues & utilities). Aren’t I entitled to only the share of equity in the home at 2/1/07? Am I required to reimburse him for the total expenses that he’s incurred in the home even though I have proof of communication between the two of us (e-mails) where he not only agreed that he would pay all those expenses but keep them current (which he hasn’t done)?
  2. We owed taxes for 2006 and have a payment arrangement with the IRS which he was making the payments to. For example, the “down payment” was $500 so I gave him $250 to pay and have been giving $150/mo for my share of the payments. I recently received a statement that no payments have been made to date. However, he has the entire obligation listed as “current debts” in the separation agreement. Doesn’t the agreement need to deduct the amount of payments that have already been made since he was supposedly making them and I was giving him money to do so?
  3. STBX also runs a corporation and did not include that income in his income calculation for child support. He also wishes to reduce his child support until the sale of the marital residence is completed. Can he do that? I thought they were two separate issues.

Quite honestly, the equity, etc…we’re talking pennies because we had just refinanced the house in November. I really can’t afford litigation, but what am I likely to be entitled to should this go to court?