What am I entitled to?


#1

My husband & I separated nearly 10 months ago. We have been married for 16 years and have 2 kids, ages 11 & 15. I have mostly been a stay at home mom since our 1st child was a year old. At this point, I gave up a job that I’d had for 7 years so he could take a new job that moved us out of state. I did work odd jobs here and there, and I currently babysit for extra cash. We are trying to settle things without fighting about everything. Basically, he says we split everything 50/50. We are planning on selling the family home and splitting that 50/50. He says I can keep the one family car we have, but I would have to pay him half the equity in the car. My question is that, since I will have custody of the kids, would I be entitled to more than 50/50 of our assets if I decided to go to court? I don’t want to take advantage, but I do want to make sure I get what I’m entitled to. After the house sells, I don’t want to have to move in to an apartment with 2 kids, 2 dogs, & a cat!


#2

If the marital home is titled jointly then it is marital property and gets divided, even if one party made a substantial separate property contribution to the purchase of the home. The court has the authority, however, to divide the residence in any way it wishes so an equal division of the home is not required.

In North Carolina as in many jurisdictions, the equity in the marital home is often one of the biggest assets the spouses divide. The equity is the market value of the house, less any debts or liens against it. Equity is established by determining what the current market value of the home is at the time of separation. Once the spouses agree to a current market value, any debts associated with the property (mortgage, taxes, home equity loans, etc.) are deducted from the market value to arrive at the equity to be divided. Normally, making this calculation requires a paid real estate appraisal or a real estate agent can prepare a market analysis for free.

From there, couples choose one of three options to divide the equity:

The spouses sell the home and divide the proceeds.

One of the parties may refinance the home and buy out the other party.

One spouse (usually the custodial parent) remains in the home with the exclusive use and possession for a certain period of time (for example, until the youngest child graduates from high school), then either buys out the other spouse or sells the home and divides the proceeds.


#3

Not an attorney

In general, property division will be 50/50, unless there are some extenuating circumstances that the court would find otherwise. Having children is not one of them, as the burden of those costs will be offset by child support payments. Also, if you can amicably settle and he is offering 50/50, I would advise you take it. You really don’t want the courts involved in trying to settle property, as A) it’s expensive (everything will need to be appraised + lawyer fees) and B) the court may or may not rule in your favor and decide to divide personal effects not how you and your ex would.


#4

Can I tell my STBX that they can have the house. Even though I made all the money and basically paid for everything. Just so I can move on with my life and not have to worry about it. I’m not asking for her to buy me out or anything in return.

And before people say I’m being to generous.

  1. We are both from upstate NY and all of our families live in NY. We have no family here in NC
  2. I’ve got 3 kids, 20, 18, and 15. They all live at home and the oldest is in college and works part-time at Wal-mart

So I’m mainly doing this for my kids. I am providing for them.


#5

Wow that is super generous… and unnecessarily so. Any support the children require will be done through child support. You only have 1 minor, the 18/20 year olds are adults.

You can move out whenever you want — especially if you don’t want the house. I think it’s fair for her to have the house if you don’t think it would be feasible for her to get another one, but in return you should ask for the same value in your retirement or something like that. Asset distribution is like trading baseball cards.

In the end it’s your “stuff” and you’re free to do what you want with it, but don’t sell yourself short. Being generous now can often be regrettable later when your spouse is suing you for this or that. Or you end up paying gobs of alimony despite her walking away with more than half of the marital property. It can be hard to start over when you’re getting bled out by another person monetarily.


#6

Great advice End of the line, but in Dragons case, I think he’s doing the right thing in his gifting. In his case its the honorable thing to do. (some of us have read his previous posts and were utterly shocked). Its a small band-aid he’s giving his family . Great idea Dragon!


#7

If he prefers an inequitable distribution, then that’s his choice but it should be clearly documented within any agreement along with the limitation of said gifting less he put himself at risk and end up with nothing.


#8

[color=#0000BF]I agree. He should have it properly documented[/color].


#9

Usually, equitable distribution ends up being a 50/50 split of assets and debts, but there are a number of factors that the court takes into consideration when making this determination. Review the full list here:

http://www.rosen.com/property/pstatutes/§50-20-distribution-by-court-of-marital-and-divisible-property-upon-divorce/

It sounds like you have been a dependent spouse, so you should really be looking at spousal support and child support.