I want out asap, trying to get Sep. Agreement in place, but I can not afford to continue paying our Mortgage, and pay for an apartment.
My wife does not work, yet is on the Mortgage. She refuses to sell the house.
What are my Options ?
Is your wife able to work and chooses not to or is it that she can not work?
I would take this refusal to mean that your spouse is worried she will have no where to live given that she does not work. If she can work and is just choosing not to, then I suggest that you put into an agreement that you will help with the mortgage until a specified time. Or ask if she would be willing to move if you helped get her set up in an apartment…
She will likely request alimony but if she can work, then you have the option of offering to help for a short time, until she gets a job, instead of paying alimony indefinitely. By helping I mean give her X amount a month and allow her to do with it what is needed. If you haven’t already done so, it’s best to remove your name from all the household utilities unless the two of you decide that she is moving. If that is the case, then remove her name from all the household accounts. The house will either have to be refinanced or sold to remove either name…If she’s refusing to sell the home, and you have moved out, then she would at the end of ED owe you 1/2 the equity and will need to refinance into her name alone.
It seems as though your wife will continue to refuse to cooperate, and if she doesn’t work she will likely not be the first to move out. If you have tried to negotiate a separation agreement with her to no avail your next step will be to file an action for Equitable Distribution of marital property.
In order to file the action you must be living separate and apart at the time the action is filed. While I know staying with friends or family is not the best scenario it may be your only option if you cannot afford to maintain the mortgage payments and rent an apartment. Since your wife does not work at this point you will need to continue to pay the mortgage to protect your credit and to preserve this asset until the court makes a determination with respect to the house.
Erin - All utilities are in my name, both cars, but mortgage is in both our names. How do I “prove” I am living in a sep. residence for a year ?
I assumed I had to have my own place, but it seems like you are saying I can be living at a friend’s ?
If the only place I can stay is my parents in the next state (I can work remotely), are there any negative concerns (from a judge’s point of view) with living in the next state while I am waiting for my wife to agree to sell the house ? How long (ballpark) does it take from filing “an action for Equitable Distribution of marital property” until I see a Judge and he/she decides the house will be sold ?
As long as you are not living at the same residence, your separation is “official”. You can stay with a friend or family member to make things easier. That person could testify if the date of separation is called into question, which would be a delay tactic on your spouse’s part and would only serve to prolong the divorce filing.
Your sworn statement in a Complaint will be sufficient to prove you are living elsewhere. You may live with a friend or relative, however relocating out of state will be an issue in so far as child custody goes, and it will be inconvenient to travel back and forth for court hearings.
Once a claim for Equitable Distribution is filed you may file a motion for interim distribution asking the court to order the home to be placed on the market. This allows you to move quickly and you can avoid waiting for a full trial on all the property. Typically these motions can be heard in about a month or two dependin on your county it could take longer, or be scheduled sooner.
I’m sorry to say you have a long road ahead of you, and you had better be pretty careful. Those of us who supported Stay-at-home-Moms who turned out to be narcissistic & entitled, or just crazy, are fairly screwed. But, once you know what to expect, it is better.
The following is my advice just from my situation. I make a good salary and my STBXW does not work. I am in NC. I have been separated for over 1/2 a year and have a PSS and Temporary Custody order.
Others can feel free to correct what I’ve written. In my experience, the bottom line is that dependent spouses have a lot of leverage to continue to have you support them for a long time. There is no forcing them to go back to work right away.
You had better worry about preserving access to your kids. Moving out is technically “abandonment” unless you sue for “divorce from bed and board” because of the mental anguish she causes you. I don’t know much about that, but it is an option. From what I know, moving out primarily affects 1) your right to go into the marital residence, and 2) your access to your children.
A good scenario would be the following:
She agrees to 50/50 temporary custody. This goes into a private agreement prepared by your lawyers.
She agrees to limited PSS
You move out and get the cheapest 2-bedroom apartment you can find.
You take 1/2 of the stuff in the home.
You borrow money to meet all of the bills and the mortgage, plus your added childcare costs for the 7 year old.
You live apart for a while.
After things settle down,
She agrees to 50/50 Equitable Distribution and you sell the house.
She agrees to 50/50 permanent custody.
She gets a job.
Not good scenario
If she won’t agree, then
You will have to sue for temporary custody. If she has been the primary caregiver and wants to fight for full custody, watch out. She will want as much custody as possible because it increases the CS amount substantially. The calculator on this site is good.
She will sue for Post-Separation Support, which is temporary alimony. Figure on anywhere from 1/4 to 1/2 your GROSS monthly income.
She will sue to get you to pay her attorney’s fees since you make more money. I don’t know what the general rule of thumb is for these in a supporting/dependent spouse situation. I’m about to find out.
That will set up the temporary situation.
On to the permanent actions.
You will have to sue for ED in order to divide up assets, as the lawyer said. For the kids, the court is not likely to force a sale of the house anytime soon, I imagine. The only benefit to you to complete ED is that you won’t have to pay a mortgage. Otherwise, take your joint retirement and split it. Oh, and don’t worry about splitting up any cash savings, because you won’t have any. Two years ago I had over $40K in liquid savings- now I have $0.
You will have to deal with permanent custody, if that is contested.
I have had to fight to get 40/60 temporary custody.
You have no idea how expensive this is going to get if she is going to fight every step of the way. I have hard evidence of marital fault on her part. She moved out of the marital residence after breaking of reconciliation. But, I am out $20,000 so far in legal costs, am paying 1/4 my gross in PSS, am paying 1/4 my net in CS, paying the mortgage and all bills, etc. My STBXW has almost $100K in inherited cash that she doesn’t have to touch for daily living expenses. I have nothing left. I’m running a deficit in the thousands each month. Though I have 40% custody, my wife is not expected to work by the court, though she has a professional masters’ degree.
I’m sure your wife is difficult. My advice, though, is to take $20,000 and use it to try to repair your marriage. It’ll be cheaper in the long run. It can be that your marriage is beyond repair. It will still be cheaper to try to bring it up from the ashes, and better for your kids.
[/quote]