Would I be shooting myself in the foot?

Dear Rosie:

Greetings. Here is my advice - see an attorney. You have a lot of tricky legal issues. First, his separate property is his, unless he commingled it or gifted it to the marriage. This factor may be significant, if you are compelled to pay alimony.

Yes, it is foolish to waive your rights to anything in a separation agreement without consulting an attorney and ensuring that you are making a waiver in excange for something else.

If you move out of the house, you will want to try to negotiate a separation agreement first, concerning who will pay the mortgage, what will happen with the house, etc. You cannot initiate the sale of the house if he refuses.

On the last point, it will depend. Your accounts need to be reviewed to determine which is marital and which are separate, so I cannot tell you from the information provided herein. Best of luck and let us know if we can help you work out these details.

Janet L. Fritts
Attorney at Law
4101 Lake Boone Trail, Suite 500
Raleigh, North Carolina 27607

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 but a full discussion with an attorney should be undertaken before taking any action.

My Husband and I have been married for 5 years and we have one child. I am the main income provider, although have been working for significantly less time that him (due to age difference in us). We do not have a prenup, and his assets are considerable when compared to mine (for what each of us brought to the marriage). He has an account with a tidy sum of money in it that he inherited prior to us meeting, and also a reasonable retirement stash in IRA’s.

Would it be foolish to waive rights to those two items in our separation agreement? I am worried that he will be really bitter about the separation (he isn’t agreeing to it) and will go after me for everything he can but I just don’t feel like either of those two items are something I should mess with (he worked hard to save his IRA’s, and I am in a position where I can do the same, and the inheritance is family money and not something I ever considered part of ‘our’ spending money) - although if he is going to try and get alimony from me or fight me on custody of our child then maybe it would be foolish to ignore those two items? I am confused. I don’t want to be spiteful - but I don’t have a good feeling about what his actions might be.

Also, how does it work when one spouse wants to separate, and the other doesn’t. What if he refuses to participate in any separation agreements at all?

If I moved out of the house (assuming he refuses to), I imagine I am still responsible for the mortgage payment seen as we are both on the title and mortgage papers? How can I initiate the sale of our house if he is refusing to agree to a separation?

We also have a number of bank accounts/brokerage accounts and credit cards. Some are in his name only, some are in my name only, and some are joint. Am I right in thinking that they are all joint property and we both have equal rights and responsibilities for the assetts and debts regardlass of whose name they are in up until the separation?

Thanks for any help/advice!