Wife moving very soon


#1

Hi Erin,

Well my wife finally decided to talk last night. Unfortunately she signed a contract for her own apartment yesterday w/ a 12 month lease. She has also consulted w/ her attorney. She said she will not move before getting a seperation agreement in place, and that we need to get one ASAP. We both agreed to write down what we thought was fair and then we’ll begin discussing it, eventually getting an attorney’s blessing. So…

Apparently she is willing to be somewhat fair about this and, as an example, she said any inhetritance I have received (either prior to our 16 year marriage or during) should go to me. Also, I came into the marriage w/ more $ and she said that I can also leave with that advantage. Does that sound like something that is acceptable in a SA? Is it a case of whatever we agree to in the SA will be enforceable? I do not want to end up in a situiation where we think we have an agreement but then the courts step in a year from now and say ‘no’, that is not equitable. We’d like to keep the courts out of this.

Regarding property, do I value it to the best of my abilities and then begin splitting the assets from there?

She admits she cannot pay for half the mortgage and her apartmnent so I am assuming that I can project our mortgage for the next year and back out half of that from her walk-away $, right? She has already stopped her payroll check from going to our account (where the mortgage is paid from) and now has it going directly into her account, so basically I need to start covering the mortgage in full effective immediately.

Is there a basic fillin-the-blank ‘form letter’ online that would indicate what a SA needs to include?

If I have to refinance to keep the house, is she responsible for half the refinancing costs?

Of course I have many more questions, but I’ll stop here for now.

Thanks in advance for your input…


#2

Anything you agree on in a separation agreement is going to be enforcable. Make sure you have an attorney look over it BEFORE you both have it notarized. The court isn’t going to step in unless someone files suit.

I think it’s great that you two are talking. I don’t have answers to all your questions but I do wonder about her willingness to allow you your inheritance and money you had before the marriage. I’m sure ERin will correct me if i’m wrong but I believe that inheritance and what you had prior to the marriage would be yours regardless. Neither should be a martial asset.


#3

Having a separation agreement in place may take a while and you should consult an attorney also…

I agree with 4them on the willingness of your spouse to allow you to keep what the courts possibly would consider separate property. Inheritance is not considered a marital asset regardless of when it is acquired unless the spouse is also named.

There is a sample agreement on the home site that you can use as a guide for your agreement. My husband’s separation agreement included everything; custody, child support, division of all property and accounts…
As long as what you are agreeing to is not illegal, it can be put into an agreement and notarized. If say in 6 months, she decides that she wants more, and attempts to have the agreement voided somehow, is the only conceivable way that this would go to court after an agreement is signed. Having an attorney look over the agreement is a good idea to protect you both from that happening. If the separation agreement is notarized and legal then it is enforceable, even if it’s unequal distribution.

She would still be responsible for 1/2 the mortgage since it is a marital debt, however the agreement would probably state something like “…after xx/xx/xx date, husband agrees to take on sole responsibility of marital home and agrees to attempt refinance within X time frame…” this is only providing that both names are on the mortgage. If both names are not on the morgage, only on the deed, I believe that she will need to sign a quit claim deed to have her name removed. I do not think that you can attribute 1/2 the mortgage to her for the year that you are separated, but I could be wrong.

You can request that she pay 1/2 the refinancing costs but the attorney would have to tell you whether or not that is her responsibility or something that is separate.


#4

Any inheritance you received before or during the marriage is your separate property, and the same goes for any separate funds (that you can still trace as separate) that you came into the marriage with. A separation agreement is a valid and enforceable contract when signed and notarized by both parties, it is not filed with the court and not subject to review by a judge. You are free to agree amongst yourselves to property distribution. The court will not intervene.
Property is valued as of the date of separation and then divided. You will likely have to refinance the home into your own name if it is distributed to you.
I recommend that you schedule a consultation with an attorney so that you may discuss your case individually and put a plan of action in place. There are many things which should be included in Separation Agreement, and you want to ensure that your rights are fully protected.