Seperation/Pre-Nup


#1

He has not waived his rights to the property simply by leaving, under Equitable Distribution laws he is entitled to one half of the property acquired by them during the marriage. If the house she owned prior to marriage was then titled in both names, it was considered a gift to the marriage, that means that all of the equity in the residence is marital property and subject to division.

Without reviewing the prenuptial agreement I do not know if it will have any impact on the division. Given the circumstances you have described regarding the execution of the Agreement it is very possible that it was signed under duress.

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.


#2

Have you heard of a prenupt containing quitclaims to future marital property. And if the prenupt does not give any more rights to one person over the other, how would a court distribute?

And how do you feel about the abandonment. He gave her a check when he left to cover the mortgage payment. Although she hasn’t cashed it yet. I told him her cashing it has no bearing on giving it to her and not abandoning his financial obligations.


#3

Anytime you leave the residence without provocation it is abandonment, the difference lies in whether or not the court will penalize a party for that behavior. If he continues to provide his ex with financial assistance it is unlikely that there will be negative consequences for his behavior. Even if he did abandon the residence he did not waive his right to the marital property.

Prenuptial agreements generally deal with the acquisition of future assets, it is likely the agreement has specific provisions dealing with the division of assets depending on how they were acquired.

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.


#4

I am a law school student with 6 years of prior law enforcement experience, and it is amazing how many people hear that I am in law school and want advice from me. Although I am usually successful is dodging the bullet, my dad has asked me for advice and I want to make sure that I have steered him in the right way.
He and his wife seperated last saturday. The first piece of advise that I told him was to consult an attorney. But nevertheless, he hasn’t…yet.
They seperated, with the intentions (atleast it was his impression) of working things out, so he did not intend to stay gone forever. He is staying with a friend in the meantime, nothing permanent. He tried to return to the house today and retrieve some more of his belongings, clothes, mail, etc. The locks were changed and garage door opener no longer works. From a law enforcement standpoint, if he were to break into the house, no criminal court is going to hear charges of B/E to his own house. They seperated with intentions of working things out, and he wasn’t told to stay away, so DC trespass won’t stick either, in my opinion. I told him he should have called a sheriff depty to standby while he gathered his belongings. Instead, he called her dad to the house to try and retrieve his items for him, but her dad become confrontational and told him he had no right to any property within the house, or the house itself for that matter, that he has abandoned her and the property. I completely disagree even though her dad has claimed he has spoken to two attorneys. When he left it was with the intention of working the issue out, and he even left her with half of the mortgage payment, as he has done for the last three years, with her so that the payment could be made. I told him do not be concerned about abandonment as long as he is continuing his financial obligation, etc.
Her dad is claiming that he is not entitled to any portion of the house or equity therein. There is a prenup stating that each party quitclaims their right to personal and real proeprty possessed prior to marriage and any proeprty obtained after marriage whether it be marital or otherwise. I have never seen a pre-nup dealing with marital property, and if each respective clause quitclaims rights to marital property, who has it? The hosue was owned by the wife prior to marriage, but it was refinanced (with her cashing out about $60,000) after marriage with both names on the loan and the deed? The prenup wsa constructed at the request of the wife, by her attorney, and presented 2 days before marriage, without an opportunity for my dad to have an attorney look over it, i think it was presented on a Friday, married on Sunday (so I think the prenup can be contested regardless but won’t get into that). I would assume a court would award equitable distribution on the equity in the house, taking into consideration the appreciateion from the time the loan originated and current appraisial/sale. Thats what I advised him, but wasn’t completely sure as I am unfamiliar with seperate clauses, identical, quitclaiming rights to marital property.
I feel like he is going to get steamrolled if he doesn’t get on the ball so I turn to you. Other than advising him to retain an attorney first thing Monday morning, what do you suggest?