I was served a civil summons for an Absolute Divorce. There is no mention of our property in these papers. We moved to NC in 2020 and paid cash for a house after selling everything we owned in California. The house is in her name. I had to start seeing a psychiatrist in January of 2022. I was diagnosed with bipolar, manic depressive, ADHD, and other conditions. I was prescribed 3 different meds anxiety and depression. We officially separated in March of 2022. At first I told her she could have the house and everything in it. We did have a separation agreement that stated the same. Now, almost 3 years later, I was served the divorce papers. I no longer agree with her having the entire house that we both bought with assets liquidated in California. What can I do now? How do I answer the complaint for Absolute Divorce? I would be more than willing to go to mediation or arbitration to get what’s fair, but I have no idea how to navigate this legal system.
If you have a separation agreement where both of you signed and both of your signatures are notarized and the separation agreement fully addresses equitable distribution (property distribution for the marital assets), then you have a binding and enforceable separation agreement and therefore a binding and enforceable equitable distribution settlement. There would generally be no legal remedy.
Assuming you have a binding and enforceable separation agreement that addresses equitable distribution, then the issue of equitable distribution does not need to be part of the divorce complaint because it was already resolved outside of court.
You could attempt to set aside the separation agreement if a contract defense applied, like duress, undue influence, misrepresentation, etc. If so, you would need to file a claim to set aside the separation agreement and a claim for equitable distribution in the event the separation agreement was set aside. The divorce can still be granted.
Anna Ayscue
Attorney with Rosen Law Firm Cary • Chapel Hill • Durham • Raleigh • Wake Forest
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