Separation - who leaves, and ED


#1

It sounds to me as though your SBTX is like a lot of ex’s out there. It’s not bad enough that you have lost a parent but he wants to capitalize on that loss. I would say that as long as he isn’t named in the will, then it’s all yours. Here’s what I found on the home site: You’ll love this[;)]

Excluded, however, from the definition of marital property are gifts and inheritances, received by one spouse only, from third parties, whether such property is acquired during the marriage or not. Such gifts and inheritances are that spouse’s separate property and do not get divided with the other spouse.

You can file divorce from bed and board: Here’s info on that.
Divorce from bed and board is a fault-based action, usually brought by an injured spouse to get the court to order the other spouse out of the residence. If brought in conjunction with other claims (custody, child support, distribution of property), a judicially ordered separation pursuant to the prayer for divorce from bed and board establishes the separation required for those other actions. The complaint for divorce from bed and board must be verified and it must contain the required allegations of residency.

Only the injured party may apply for a divorce from bed and board. The complainant seeking a divorce from bed and board must establish at least one of the six fault grounds enumerated in the statute: abandonment, malicious turning out of doors, cruel or barbarous treatment, indignities, excessive use of alcohol or drugs rendering the condition of the other spouse intolerable, or adultery.

The method for proving any of the six grounds for divorce from bed and board is the same as the proof required for any of those same grounds under the alimony case lawThe complaining party must prove the ground by the greater weight of the evidence

I would say that filing for divorce from bed and board would be something to look into but keep in mind that the separation term of one year and one day does not begin until one of you move out. No you are entitled to 1/2 the marital assets and debts, which is equitable distribution. This means that you will not lose any rights to the home if you move out unless you sign away your rights to that effect. He would not have to sell the home but that is only if he has the funds “buy you out”. The house would more than likely have to be refinanced or sold no matter who moves out to get the other’s name off the mortgage and deed.

Hope this helps, keep us posted and good luck!


#2

Thanks Stepmom.

Most of our assets are separate and somewhat equal. The one thing that falls outside of that is the equity in the house.

If I leave the house for a separation, without an agreement, do I risk losing equity in the home without a court battle and lawyer fees?


#3

The house is considered marital property. You are entitled to 1/2 no matter who is living there and it makes no difference in equitable distribution who makes more money. There are some exceptions but even if you move out then you are still entitled to the same that he is, equal distribution of marital assets and debts. It may prove easier to move and “start over” in a new place, but I understand your reluctance. The only thing that you will not split is inheritance providing that you were named and not both. He is entitled to 1/2 your 401K but you are entitled to 1/2 of his. You are both entitled to 1/2 the savings.

The only way the separation can start is by one of you leaving. It is not necessary to have a signed separation agreement in place for you to protect what you are entitled to. Be cautioned though that without one, he could potentially sell off assets without your consent or knowledge. But there is nothing that says you will lose any right to the marital property because you are the one to leave.

My husband sold everything he could when going through his separation, eventually even the house. (She moved out because he told her that she would be responsible for paying the house payments and there was no way she could afford it) The catch to this was that he didn’t make any money off anything so there was nothing to split with the ex. He sold things for just enough to pay them off and that way they didn’t have debt to split either. The only thing that made a profit was her business that she had for less than a year and he paid all the bills off and split the remaining money in the account for it giving her the extra 15 cents.


#4

Wow justme, your situation sounds alot like mine!
My bags are packed today and I am going to my parents home this week. I’ll figure out what to do after that… later this week.
We don’t have children but my husband also has a substance abuse problem.
I am sad that “I” had to be the one to leave our home but for the past 2 years I have been miserable. He didn’t care and He sure wasn’t going to leave. He’s an ASS!! Anyway, I guess the only way for me to finally get this “seperation” ball rolling was for “ME” to leave.


#5

Dear justme:

Greetings. First, you know he is pushing your buttons, right? He is entitled to half of the marital property. Inheritance is separate and you do not have to split it - it is not going to him.

No, you are not giving up the rights to equity in the home if you leave, BUT it may be harder to negotiate a settlement with your husband once you move out and he can restrain you from coming back into the home.

Yes, if you leave the court can force him to refinance or sell - but I still think it is better to have a signed separation agreement before you separate and move out.

No, he is not entitled to half, or any portion for that matter, of your inheritance. MAKE SURE that you do not commingle these assets or pay off joint debt. Keep any funds or property that you receive in a separate account solely in your name. Do not title it jointly, or that will be deemed a gift to the marriage.

Yes, you can use divorce from bed and board, but it is difficult and costs-prohibitive. Thank you.

Janet L. Fritts
Attorney with Rosen Law Firm

4101 Lake Boone Trail, Suite 500
Raleigh, North Carolina 27607
919.787.6668 main phone
919.256.1665 direct fax

301 McCullough Drive Suite 510
Charlotte, North Carolina 28262
704.644.2831 main voice
704.307.4595 main fax

1829 East Franklin Street, Bldg 600
Chapel Hill, NC 27514
919.321.0780 main phone
919.787.6668 main fax

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 but a full discussion with an attorney should be undertaken before taking any action.


#6

My husband and I have been headed down the road of separation and divorce until - we’re there now. Summary and questions:

He recently told me he wanted me to move out. I suggested that one of us move out, refinance, and split the equity. OR, we sell the house and both move, and split the proceeds. He wants no part of that - he claims since he makes less money (only by several thousand a year), he’s entitled to more.

I recently lost a parent; one immediate question he had was if there was a will and what it said. Now, he’s saying he wants half of everything, including any inheritance, all 401k, savings - then he says NO, he wants 60%, because he makes less. I pay half the mortgage and 75% of household bills.

I don’t want to move out. We have a college-age son at home who also does not want to leave home.

Questions:
If I do leave, am I giving up any rights to equity in the home?
If I leave, can he be forced to refinance or sell the home?
Do I need to do anything to protect my parents’ estate - is he entitled to any of that?
Can “divorce from bed and board” be utilized due to his alcoholism and related behavior - or is that difficult and/or cost-prohibitive?

thanks for your help. I was hoping we could do this amicably - 50/50 split, minus the inheritance - but he has other ideas.