Divorce/mortgage question from a friend

GymB

GymB

Picking it up slowly.
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Not me.

Buddy’s wife is an unrepentant alcoholic. He is maintaining custody of their two children and living in the home, she has moved into an apt. She was the primary breadwinner but he also works.

House deed and mortgage are in her name alone. Neither party is paying the mortgage. He’s been getting lots of mail from the mortgage holder (Wells), but passes it to her unopened. He is paying all the utilities.

He thinks that if he pays the mortgage that he’s basically setting the cash on fire, but more importantly, he can’t afford the payment. He has no idea what the foreclosure process is, where they are in it (having missed 4 payments) and if there is anything he can or should do to keep from loosing the house. Also no idea if she’s borrowed more against the house to create marital liabilities.

His attorney has been paid, and has a retainer, but has not responded to him for 3-4 weeks.

Anyone have experience with this sort of situation? Thoughts beyond the obvious suggestion to find a new attorney?
 
If he lives in Nc then half the home is his.

His best bet, if he can’t afford the payments and isn’t going to get alimony or child support to help with the payments would be to force the sale of the home and split whatever they make off the sale with his wife and move somewhere else.
 
Interesting question. NC has some unique laws concerning homes in terms of being a marital asset. I know that if the home is in both names, that it is considered a joint asset that can't be touched to resolve liabilities of one of the individuals. It might make if difference if the house was bought pre or post marriage as it is also possible that things acquired post marriage, with the exception of inheritance are considered marital assets. At the same time, if his name is neither on the deed, nor the mortgage, I doubt that he can be held financially liable, but wanting to try to keep the house through a divorce settlement could be tricky. There is a good chance he would have to "buy" the house meaning qualify for a loan for any remaining balance. The house being in foreclosure could make this more difficult if for no other reason than any future lender might look at the situation and say - why did you not make the payments and wonder if he is capable of doing so.
 
Nope, he needs a new lawyer.

When she bought the house will come into play. If she bought it before they were married, it gets bucketed under "separate property" and is more than likely hers to deal with. If they were married and she bought it, its "divisible property", and he is likely going to have to buy her out if she's willing (and this can include payments towards the appreciation in property values), or if not, she sells and they split it. There is also consideration if he can show he invested in upkeep/additions/maintenance costs in the house. This usually gets plopped in front of a judge to work out.
 
Best advice to give right now is for him to get another lawyer. However they aren’t cheap and most likely he will not get the retainer returned.

If she is still working, he needs to get before the court and get a custody order in place. Once that is done, child support could e court ordered as well.
 
WOW!!!! way to many variables in that circus to give good laymen advice. He needs a good divorce lawyer. Even then it appears on that little information to this dummy her agenda is getting the children and house and throwing his ass out on the street.:(
 
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I think his immediate problem is the attorney, but after that he loses a ton of leverage on custody if he’s homeless and she has an apt. My advice is to live free for as long as he can, but be prepared to pick up and move on short notice. He may or my not get any value from the sale of the house, but nothing he can do about that today. Do appreciate the suggestions.
 
GymB said:
I think his immediate problem is the attorney, but after that he loses a ton of leverage on custody if he’s homeless and she has an apt. My advice is to live free for as long as he can, but be prepared to pick up and move on short notice. He may or my not get any value from the sale of the house, but nothing he can do about that today. Do appreciate the suggestions.
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That makes sense.

Tell him to bank what money he can and go ahead and start looking for a good place to buy it rent.
 
In NC it doesn't matter if the house was bought before or after marriage, it is still marital property. I just went through this when I sold my house last year. I bought my house way before I met my wife and we had been separated for a couple fo years when I sold it. She still had to sign the forms at closing even though she wasn't on the mortgage or the deed.

I don't know how the foreclosure will come in to play in his situation though.
 
ImYourHuckleberry said:
In NC it doesn't matter if the house was bought before or after marriage, it is still marital property. I just went through this when I sold my house last year. I bought my house way before I met my wife and we had been separated for a couple fo years when I sold it. She still had to sign the forms at closing even though she wasn't on the mortgage or the deed.

I don't know how the foreclosure will come in to play in his situation though.
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That was my understanding as well.
 
BlueGecko said:
First major problem is the attorneys 3-4 weeks of silence
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Hey buddy, I have dated emails you haven't responded to and I have paid for your services so if I haven't heard something by about Friday I'm gonna have to file a bar complaint.

Filing a Grievance | North Carolina State Bar

Filing a Grievance
www.ncbar.gov www.ncbar.gov

I've known a few attorneys, complaints are a part of life, but they will go into a panic if it's not frivolous.
 
ImYourHuckleberry said:
In NC it doesn't matter if the house was bought before or after marriage, it is still marital property. I just went through this when I sold my house last year. I bought my house way before I met my wife and we had been separated for a couple fo years when I sold it. She still had to sign the forms at closing even though she wasn't on the mortgage or the deed.
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That just seems wrong.
 
noway2 said:
That just seems wrong.
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Think of it from the perspective of the new buyer, would you do a deal if the spouse didn’t sign? You think you’ve closed, 2 hours later there is litigation and a restraining order preventing you from taking possession. You’ve paid, no place to live, and you’re filing a claim with the title insurance company. Better to stay out of the middle.
 
Banks right now really really don’t want to foreclose. The market isn’t good for REO properties and they lose their butts. So often they will kick the cam down the road as long as possible before moving. 4 months isn’t good, but if he isn’t getting them now, the naughty papers will start arriving soon.
 
Chdamn said:
If he lives in Nc then half the home is his.
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Not really.
Was it hers before?
Does the bank really own it?
There are so many things that play into it.

How much equity in it?
Cut and run if not more than 50 percent on the average market.
 
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GymB said:
Think of it from the perspective of the new buyer, would you do a deal if the spouse didn’t sign? You think you’ve closed, 2 hours later there is litigation and a restraining order preventing you from taking possession. You’ve paid, no place to live, and you’re filing a claim with the title insurance company. Better to stay out of the middle.
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Good point. But still, does property owned before a marriage become marital property, or should it? Or should it be treated like inheritance?

Kind of reminds me of being in the room having a discussion with the estate atty and my parents and she said they (the attys) need to leave the room as did my wife, which I’m sure went over well with my wife, while I discuss things with my parents, The proceeds of that conversation, though they involved divorce, shall remain confidential.
 
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noway2 said:
Good point. But still, does property owned before a marriage become marital property, or should it? Or should it be treated like inheritance?
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There are so many factors.

50/50 generally apply to items inside the marriage.
And how much is really owned vs how much the bank owns.
 
noway2 said:
does property owned before a marriage become marital property,
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Many years ago I was told to never commingle assets from an inheritance with marital assets, but who knows of that actually accomplishes anything. In my family the concern is farmland, it passes with blood, only with blood. I have a brother that disagrees because, love; I strongly suspect that his share will be held in trust for the benefit of his children.
 
He needs to communicate with the mortgage company. One payment may reset the foreclosure clock. Wells in general sucks but he needs to communicate with them.
 
ImYourHuckleberry said:
In NC it doesn't matter if the house was bought before or after marriage, it is still marital property. I just went through this when I sold my house last year. I bought my house way before I met my wife and we had been separated for a couple fo years when I sold it. She still had to sign the forms at closing even though she wasn't on the mortgage or the deed.

I don't know how the foreclosure will come in to play in his situation though.
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A spouse gets some rights to real estate, but not necessarily ownership, for real estate acquired before marriage - at least I think that's the way it works. Spouses would normally sign off because of those rights. However, I don't believe an ownership is acquired. He needs a good lawyer.

If I were a judge, and I would not make a very good one, I would not look favorably on him for failing to provide a stable home for kids, with respect of staying in a house until it was foreclosed on. If he can't share in the equity, and can't make the payments, maybe he should move into something he can afford. If he's not opening the mail he has not idea how bad the situation is. Late fees, penalties and legal fees can and will be assessed on such an unpaid mortgage.

See "Separate Property" here.

 
dmarbell said:
If I were a judge, and I would not make a very good one, I would not look favorably on him for failing to provide a stable home for kids, with respect of staying in a house until it was foreclosed on.
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Gotta look at all the facts. She moved out and left the kids and probably can’t afford the house plus her apt. Judge doesn’t get to create a perfect solution, he has to try to make something from a pile of crap. I’m sure that they end up not looking favorably on either party in a contested divorce with children.
 
dmarbell said:
A spouse gets some rights to real estate, but not necessarily ownership, for real estate acquired before marriage - at least I think that's the way it works. Spouses would normally sign off because of those rights. However, I don't believe an ownership is acquired. He needs a good lawyer.

If I were a judge, and I would not make a very good one, I would not look favorably on him for failing to provide a stable home for kids, with respect of staying in a house until it was foreclosed on. If he can't share in the equity, and can't make the payments, maybe he should move into something he can afford. If he's not opening the mail he has not idea how bad the situation is. Late fees, penalties and legal fees can and will be assessed on such an unpaid mortgage.

See "Separate Property" here.

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They don't necessarily get ownership but they get something even worse, control. If she doesn't agree to sign the closing papers, you can't sell it.
 
Wow. This sounds generally terrible and complicated.

The one thing he has going is that it is freaking hard as heck to evict him!
 
GymB said:
He’s been getting lots of mail from the mortgage holder (Wells), but passes it to her unopened.
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I was thinking about this statement. I am assuming the mail is coming in his wife’s name and he isn’t the one getting the mortgage mail? If he’s not in the deed or mortgage getting notices would be odd.
 
noway2 said:
I was thinking about this statement. I am assuming the mail is coming in his wife’s name and he isn’t the one getting the mortgage mail? If he’s not in the deed or mortgage getting notices would be odd.
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You are correct, mail to their house in her name. He delivers it to her unopened. I believe that when things get serious that he will also get a certified letter in his name so that he is legally notified of the foreclosure process because he has some rights and the mortgage company would rather over communicate than have to start the clock over because they missed someone.
 
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