If there is no separation agreement that involves custody then they still share equal rights to the child. He is within his rights to file for custody and to keep her here in NC. If the divorce is filed, she will have 30 days to respond and then a hearing will be scheduled if there is no response. Your brother would then go before the court, state that they have been separated since xxxx date and divorce will be granted. She does not have to sign the papers for the divorce to be granted.
If she does not want to sell the marital home, then she should be required to “buy him out” so to speak. They are both entitled to 1/2 the equity and if he wants out that may be the only way to get it. This way she can do whatever she wants with it afterwards. IMHO, having rental property in NC while you live in CA is just not good business unless you can afford to hire someone close to sort of watch out for the place and upkeep. Is anyone still living in the marital home?
He needs to consult an attorney first, since no agreement has been signed all marital assets are up for negotiations, and file for ED. He should also file for custody. He can always settle for joint custody afterwards, but in order to keep her in NC he will need to have it filed.
Your brother also needs to be a bit guarded when it comes to protecting himself. He doesn’t need to get talked into OR sign any agreement he’s not willing to live with. Time and time again we see this on the forum. The person signs ‘whatever’ just to get out (most times they’re trying to be nice or signing out of guilt). Then they realize it’s not fair OR they can’t abide by it, but they’re stuck. He REALLY needs to see a lawyer for guidance.
If it has been two years and he can’t work this out, it might be time for him to consider filing a lawsuit to bring some closure to these issues.
P.S. Please feel free to bring up this or any other topic on our live call-in show every Wednesday at 11:00 a.m. EST. Visit radio.rosen.com for details
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
301 McCullough Drive
Charlotte, NC 28262
Main Phone: (704)307.4600
Main Fax: (704) 9343.0044
5826 Fayetteville Rd. Suite 205
Durham, NC 27713
Phone: (919) 321-0780
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.
my brother is going through a divorce process and is trying to keep everything civil for the sake of his son but his wife is not being reasonable. hes giving her everything that shes ask for but wants to sell the house. she doesnt want to sell and use it as rental property. she says if he doesnt agree to it she is not signing divorce papers. she is also deciding that nc is not for her and is planning to move to california with my nephew and my brother is too kind hearted to even protest. he needs help what can be done. hes already giving her separation papers in march and she will not sign those either. they have been separated over two years now.