North Carolina Divorce Legal Questions

This is a common but difficult situation. The divorce agreement may have assigned the home to your ex-husband, but that does not remove your name from the mortgage. The only way to be released from liability is through a refinance or payoff—which unfortunately didn’t happen. The lender’s contract remains binding until that loan is satisfied or refinanced in someone else’s name. Because your ex-husband has passed away, his estate (and possibly his heirs) is now responsible for the property. However, since your name is still on the loan, the bank can still report or pursue you if payments lapse. You may have a claim against his estate for failing to refinance as required by the divorce decree, but that’s something you’d need to address through probate or civil court. You should gather the divorce judgment, the deed, and mortgage statements, then speak with a North Carolina family law or real estate attorney. They can review whether the property legally transferred to his sister and what options exist to have you removed from the mortgage or to protect your credit and financial interests going forward.... Read More

If you are not able to find an attorney who is local and can't afford an out of town attorney, the only other options that I can think of is to represent yourself or see if you are able to find an attorney who is willing to represent you for free.  We do offer advice and assistance at our regular hourly rate without making a general appearance in your case.   You may even hire us to draft documents for you to file in court.  That should be much less expensive than hiring an attorney to handle the case for you.  If you are interested in an initial consultation to discuss this matter, please call us at 919-680-2300.  ... Read More

One of you has to be the Plaintiff in the Divorce, and the other has to be the Defendant, so No, you cannot file together.   One of you would need to file the complaint, and then serve the other party.  Then there are additional steps that you would have to take to finish the divorce to include a court appearance.  You can look up North Carolina General Statutes, Chapter 50 and the local rules for your county to learn the steps you would need to take to do this on your own.  An attorney can make this process go alot smoother for you and can sometimes eliminate the requirement for you to appear in court altogether.  Please locate a local divorce attorney to schedule a free initial consultation to discuss the process more thoroughly.  You will receive much more information from an initial consultation, and afterward you can decide whether to retain the attorney or file on your own.  There is no obligation to hire the attorney after the consultation.... Read More

When a property is deeded to both spouses, it is typically considered marital property, even if it was originally gifted to one spouse. By adding your husband to the deed, you converted what was initially your separate property into jointly owned property. This means that, in the event of a divorce, he could claim an equal share of the property unless there are specific agreements, such as a prenuptial or postnuptial agreement, stating otherwise. If your sister is facing divorce, she should consult with a divorce attorney in her state to explore options for protecting her interests in the land. A skilled attorney can review the circumstances and potentially negotiate a fair property division or seek to classify the property as separate under certain conditions.... Read More

If I understand you correctly, you may be confusing ownership of property with a morgage loan.  I don't think you want your name off the house, I think you want your name off the mortgage loan which is secured by the house, which is a totally different thing, and to which the bank has no reason (unless your ex refinances) to agree.  Right now, both you and  your ex are responsible to repay the mortgage loan to the bank.  Even if you and your ex agreed that, as between yourselves, your ex would be solely responsible for the  loan, that only means that, if your ex defaults on the loan and you have to pay up, you can sue your ex for breach of the contract the two of you made.  It doesn't bind the bank in any way.   Simply put, getting your name off title to the house doesn't affect your obligation to repay the bank.  Why would the bank let you off the hook?  What's in it for the bank? As for modifying the loan, if you were a signatory on the loan, it cannot legally be altered without your consent unless the contract gives your ex that authority (highly doubtful) or you somehow gave your ex that right (in the divorce decree?  power of attorney?)  Frankly it's  more likely that your ex forged your signature.... Read More

While there may be a way to get out of the Separation Agreement, there is a very real chance that you are stuck with the deal that you voluntarily agreed to sign.  The Separation Agreement ("SA") is a contract between you and your ex, and like most contracts, you can't simply just say "oops, my bad, I want to get out of it."   If the proper steps were followed in the drafting and execution of the SA, you may not be able to get out of it and may have to comply with whatever the terms set forth.  You are going to have to schedule a consultation with a local family law attorney, but be prepared for them to tell you that there is little they can do.... Read More

You can't stop him from getting a divorce so long as you have been separated for over one year and it was his intent to remain separate and apart for that year.  So at this point, unless he agrees to reconcile, you need to consider what steps you need to take to protect possible claims against him.  The most relevant claims are one for equitable distribution (property division) and for post-separation support and alimony (spousal support).  If these claims aren't pending prior to the divorce being finalized, you will lose the ability to pursue them.  So you will probably need to consider whether you should file a lawsuit against him for these claims, or whether you should try to work something out voluntarily.  If you work somethign out, you can sign a contract with him that resolves your claims, which contract is typically entitled a Separation Agreement.   It is quite easy to make mistakes on your own if you are purusing either option, so I would highly recommend you talk to a local family law attorney.  ... Read More

There isn't a specific answer to this question.  Any general litigation attorney is capable of handling your case, although many will turn it down as it pretty unique.  I have dogs and I totally get why you would want to appeal, but do want to give a warning that I could easily see you spending $2,000+ on attorney' fees.  ... Read More

I anticipate that folks are going to be hesitant to provide a clear answer without having a long face to face meeting, and because it is always difficult to guess what a judge would do.  That said, she would have a claim to divide the property you acquired during the marriage, and she has a theoretical claim for spousal support.  Her spousal support claim is not a particularly trong one due to the fact that you are 70 years old and not employed.   With the caveat that I know very little about your case, I am skeptical that you would be forced to pay for anything in excess of what you are paying for now, and I'm skeptical a court would even require to continue making the mortgage payment.  But you need to consult with a family law attorney in your area who will go over all the claims in your case and offer guidance for your next steps. I wish you the best.... Read More

If you have already tried negotiating with your husband and you haven't been able to come to terms, you may need to consult with a local family law attorney.  Without some compelling reason, I wouldn't accept less than 50% of the marital estate either.  In the event you do move out and file an equitable distribution claim (property division) against him, you stand a good shot at getting 50% or more (depending on the facts specific to your case).  You will want to make sure that all of the marital estate is considered when the property division is calculated.   Moving out prior to having a deal in place isn't necessarily a bad idea, but I would speak to a family law attorney in your area to confirm.  ... Read More

The defendant in a divorce case shouldn't have to sign anything, so I'm not sure I understand what you are referring to.  In a typical divorce, the plaintiff files the lawsuit and gets it served on the defendant through the sheriff.  After the defendant has been served, he or she doesn't have to have any further involvment in the case.   Unfortunately, your boyfriend should schedule a consultation with a local family law attorney who can advise him as to what he has been doing incorrectly.  ... Read More

Divinding property in divorce can be very complicated. The answer to your question would require additional information, but as a general rule, if you have paid on a mortgage during the marriage, your husband may have a claim to a portion of the home's value. It would probably be well worth the cost of consulting an attorney in your area to discuss the specifics of your situation.... Read More

In NC, there are grounds for divorce based on insanity.  The relevant statute is N.C.G.S. G.S. 50-5.1. For obvious reasons it does not happen very often. For example, I have been practicing family law for 26 years, and I have only handled one of those cases, so there are likely many attorneys who have never handled any at all.  Basically, it can be done, and you should definitely make an appointment with an experienced family law attorney to discuss how to proceed in your specific case.  I wish you the best of luck.  ... Read More

There is no requirement that a party to a divorce hire an attorney.  Either party is free to represent themselves.  It would be advisable, however to hire an attorney unless you are well versed in the in and outs of family law, civil procedure, and the local court rules of your jurisdiction.... Read More

No one can tell you based solely on the information that you gave whether you will have to pay alimony.  Whether you will have to pay alimony will depend on a number of factors. You should make an appointment for a confidential initial consultation with an experienced attorney near you to discuss your specific situation so that they can give you a better idea whether you might have some exposure to having to pay alimony. ... Read More

The two causes of action involved with your situation are (1) divorce from bed and board, and (2) equitable distribution. Divorce from Bed and Board is the claim used to ask a court to force a separation. North Carolina General Statute § 50-7 lists six grounds: Abandonment of the family, Maliciously turning the complaining spouse out of doors, Treating the complaining spouse in such a cruel or barbarous way that it endangers his or her life, Indignities that render the complaining spouse’s condition intolerable or life overly burdensome, Excessive drug or alcohol use that makes the complaining spouse’s condition intolerable or life overly burdensome, or Adultery. Regarding your inherited house, several factors may impact whether your husband has any claim to the house and you should seek the advice of an attorney in your area to determine how to proceed. Generally, inherited property remains your separate property in a divorce. However, the are ways the property may be covered under the divorce laws and your husband could have a claims to some of its value.  If both of you are aware the marriage is going to end, it may be possible to negotiate a separation agreement that proptects both of you and facilitates an amicable resolution to the matter. This, too, is something well worth involving a family law attorney in your area.... Read More

Good question.  Unfortunately, there is not an easy answer.  It can be very difficult to force a spouse out the marital residence when that spouse is not willing to move.  I strongly encourage you to contact an attorney in your local jurisdiction as the answer to this question may very a bit county to county.  For example, in Mecklenburg county, it is pretty rare that we see someone forced out of the marital residence in the absence of a showing of domestic violence.  For more information on this topic, please see one of our blogs on the topic of distribution of the marital residence in North Carolina divorce.  #3 may shed some additional light on the typical paths people may take in a situation like this.  Hope this helps.     Bill HunterHunter & Hein, Attorneys at Law, PLLC... Read More

Sorry to hear what you are going through. But don't let this change your opinion about marriage. He probably just wasn't the one for you. In order to start a divorce proceeding in any state you the petitioner will need to meet the residency requirement, which I assume you do. You can move forward with your divorce procceding by publication if you can not sincerely locate your spouse. Divorce by publication is a bit expensive and can run anywhere from $2,000 - $4,000. If you were to locate him and convince him for a divorce which I don't think would be a problem so if that happens it will cost you anywhere from $750 - $1,500 uncontested. It is best to work with a Family Law specialist so Feel free to contact my office and speak with a case manager at 1 877-866-8665 or email help@smsattorneys.com to go over your options. Licensed in New York and New Jersey.... Read More

The only grounds for absolute divorce in the state of North Carolina are (1) incurable insanity and (2) separation for a period of one year.  THe most typical route people take for divorce in NC is to wait one year from the date of separation (the date on which you began living under separate roofs with the intent to remain permanently separated) and then file for divorce.   For additional info on divorce, view our blog which answers 8 common questions about divorce in North Carolina.   You may qualify for what is known as a divorce from bed and board while still living together.  This is a fault based action that is based on the marital misconduct of one party and used in part to sever the marital rights of the offending party, to establish a fault basis for other proceedings, and in rare instances, as an ejectment action to possibly force a spouse out of the home.  A divorce from bed and board does NOT create an actual absolute divorce between the parties. I strongly encourage you to seek legal counsel in your local area as these are complex areas of law.  Hope this helps a bit.    ... Read More

I encourage you to continue seeking legal advice in your particular area.  Most law offices offer low cost (or sometimes free) initial consultations which should shed some light on your situation and answer many of your questions.  Some law firms also have much lower initial retainer fees than $6k and may offer payment plans.   One of our blogs discusses how the marital home is typically distributed during divorce in north carolina, which may shed some light on scenarios when both parties dig their heels in and refuse to leave the house.  Your situation is a complicated one that would likely need to be attacked from several angles...there are a number of potential avenues you could go down, including divorce from bed and board, postseparation support/alimony, equitable distribution/interim distribution, child custody/child support, temporary restraining order to prevent marital waste, etc...Hope this helps a bit.         ... Read More

I strongly encourage you to visit the "Self-Serve" or "Self-Help" center at your local courthouse.  Most courthouses has resources for parties that need to represent themselves and should have a divorce package that will walk you through all steps involved in the process.   I recently wrote a blog outlining the basic procedures associated with divorce in North Carolina which may shed some general light on the process.  The package you should be able to pick-up at your local courthouse will have much more detailed information as well as fillable forms and a step by step procedure for filing for divorce.   The following is a link through Legal Aid which provides a number of resources (including forms, etc.) for pro se litigants:   http://nc.legal-aid.com/    Hope this helps.  ... Read More