I am panicking.
Here are the facts:
-Separated in 2010. He has lived in the marital residence since then.
-Divorced in 2013. The house was awarded to him - he was to refinance and I was to do a quick claim deed. I did not do QCD since I was waiting for him to refinance it never happened.
-He has stopped seeing the children since January of 2019.
-He has stopped paying child support since February of 2020.
-Last year he allowed a lien to be put on the property due to unpaid HOA dues. I filed a partition of the property and lost. The judge decided to drop the case since he has lived there and paid the mortgage since 2010. Thankfully at the last minute he paid off the lien.
-Now he is starting to allow the mortgage payments to bounce. I called the bank a month ago, they requested the divorce document which states that I am to be held harmless to any debt that he accrues on the house. The bank never got back with me. I called again today and they told me the only option is for him to refi or do a qualified assumption which are based on income and credit…to my knowledge he is not working and I am fairly sure he has maxed out credit cards, retirement etc. The bank told me the ONLY way to get my name off the loan (if he does not have a job or good credit) is to take him to court and hold him in contempt.
My dilemma is that is this true? I cannot afford to hire a new attorney to take him to court again. Considering I lost the last time and had to foot that bill. If I do decide to hold him in contempt for not refinancing can I also take him for removal of rights and child support? Is there even an option to force him to sell the house and I get the child support from the equity? I dont know what to do at this point. I cannot lose again.
If your settlement terms are in a separation agreement, then you would need to sue your ex-husband for breach of contract and ask the court for specific performance. This means you are asking that the court to order him to do what he is supposed to do according to the separation agreement. If he still does not follow the court order and the judge believes he is willfully violating that order, he could be held in contempt and put in jail until he decides to comply and/or charged a fine.
If your settlement terms are in a court order, then you need to file a contempt motion (called a motion for order to appear and show cause) against him. If the judge finds that he has willfully violated the court order, then he could be held in contempt and put in jail until he complies and/or charged a fine.
These are the only two ways to enforce equitable distribution terms. The petition to partition was not the correct remedy.
You can also file a breach of contract lawsuit or contempt motion against him for the nonpayment of child support, depending on whether your child support terms are in a separation agreement or court order.
A judge cannot force him to sell the house unless that option exists in the separation agreement or equitable distribution court order. Equitable distribution cannot be modified.
Anna Ayscue
Attorney with Rosen Law Firm Cary • Chapel Hill • Durham • Raleigh • Wake Forest
Rosen Online | Unlimited confidential access to a North Carolina attorney for $199/mo - click here
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.
How do I know the difference whether it was a separation agreement vs a court order?
On the final document that addresses the house it states “Equitable Distribution Order”. We had gone before the judge back in 2013 without attorneys to finalize the divorce and settled everything out. I am assuming this is a court order? We never had an initial separation agreement in the beginning if that is what you are referring to.
So why state that I am to be held harmless against any debt that he has in relation to the house but there is nothing the bank can do to remove me. I don’t understand why the verbiage is like that.
So if I cannot force him to sell the house since it cant be modified. Since I assume he is not even in a financial situation to where he can refinance or do the qualified assumption, how can he even remove my name then? The bank wont allow him to do either one of those things since he wont qualify which they said is the only way. They also said the account has to be in good standing which is currently not. Suing him really wouldn’t get my name off unless it forces him to get a job even then he would have to get a decent enough job to make enough to refi. I just dont see how I can get my name off the loan in this situation.
What about child support? He cant pay it right now if hes not working. Would it just be easier to have his rights removed since it has been 2 years since he has seen them?
I just dont know what good way I can go about any of this. Is there an attorney that can take care of all of these issues at once?
If the document that contains the equitable distribution terms is titled “Equitable Distribution Order,” then you have a court order.
The “indemnify and hold harmless language” gives you the ability to sue your spouse for repayment of any money that you have to pay in regards to the mortgage since the mortgage was distributed to him as his sole responsibility. This is separate from the bank.
The way to enforce your equitable distribution order is to file a contempt motion (called a motion for order to appear and show cause) against him to force him to comply with the order.
Same with child support: if your child support terms are in a court order, then you need to file for contempt against him. You may or may not be able to petition to have his parental rights terminated.
A family law attorney will be able to help you with these issues.
Anna Ayscue
Attorney with Rosen Law Firm Cary • Chapel Hill • Durham • Raleigh • Wake Forest
Rosen Online | Unlimited confidential access to a North Carolina attorney for $199/mo - click here
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.
Thank you for clarifiying.
I suppose my real question is. If he isnt working then how would suing benefit me? I recently learned he does not live in the house anymore and has many people living there. I know that is not illegal. However, I am concerned about going forward with legal action to put him in contempt with nothing happening. Even putting him in jail does not get me off the loan. I just want to know if it is worth it. The payment is now late, my credit will be affected.
The child support terms are in a court order as well. He owes me around 20k. If he goes to jail how is he expected to pay that back, also if he isnt working. Could the thought be that holding him in contempt for child support would hopefully push him to sell the house on his own…?
I dont know the angle to use. I am very short on funds to hire an attorney and I cannot lose.
Filing a breach of contract lawsuit or filing a contempt motion will force him to comply with the settlement terms.
For the child support terms, it will force him to comply with the court order. A judge can still hold him in contempt and still put him in jail until a certain amount of child support is paid if the judge believes he is in willful contempt of the child support order. Oftentimes payors of child support will find money to pay towards child support when faced with the imminent risk of going to jail.
Anna Ayscue
Attorney with Rosen Law Firm Cary • Chapel Hill • Durham • Raleigh • Wake Forest
Rosen Online | Unlimited confidential access to a North Carolina attorney for $199/mo - click here
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.
So if I file a motion to show cause for the house, child support and perhaps custody. Do I need to find an attorney in the same county that the order was drafted in or can I file it in the county we now live in?
You need to file a motion in the same county in which the court file and all previous orders are. If no one lives in that county anymore, you can also file a motion to change venue.
Anna Ayscue
Attorney with Rosen Law Firm Cary • Chapel Hill • Durham • Raleigh • Wake Forest
Rosen Online | Unlimited confidential access to a North Carolina attorney for $199/mo - click here
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.