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FamilyAnswer, Lawyer
Category: Family Law
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Experience:  10 + years of handling Family Law, Divorce, Child Custody and Child Support cases
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Wife filed a no -fault divorce in North Carolina. Since there

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Wife filed a no -fault divorce in North Carolina. Since there wasn't a separation agreement, how do we decide who gets the house after the divorce is already final. My initial plan is to move out now and continue to pay the mortgage until the kids get out of school for the summer. Both our names are XXXXX XXXXX title but the mortgage loan is in my name. She can't afford to pay it so am i within my rights to move back in when I want. I just feel she thinks I will still have to pay the mortgage while she lives there and I go live somewhere else which I would not financially be able to do.
Hi! I will be the professional that will be helping you today. I look forward to providing you with information to help solve your problem.

Good morning. I certainly understand your situation and concern. You stated that she filed for divorce and then below, said the divorce is already done. I am hoping you can clarify if the divorce is still pending and if the martial assets have been divided. If the divorce is final, why was the issue with the home not addressed? Also, if the divorce is final, who was awarded the home?
Customer: replied 4 years ago.

She filed a no contest divorce through the mail and it is final now. Apparently property division did not have to be addressed for the no contest divorce. Both our names are XXXXX XXXXX title, however, the mortgage is in my name. I've been willing to continue paying the mortgage until our daughter finishes the school semester and we agreed on how to split custody. I'm just a little unclear on who has rights to the home, like if I'm able to just move back in. Shes not sure she can make mortgage payments if I stop but thinks I would have to continue paying anyway while not living there which I'm pretty sure I couldn't afford to do.

Mike, thank you for the additional information. After the divorce has been granted, the judge can divide the marital property of the couple if the court has been requested by either or both of them to do so. The court would not have the power to divide the marital property if neither party asked the court to do so before the divorce judgment was entered or if the parties had already executed a separation agreement that fairly divided their property. As such, the issue with the home and what will be done with it and who will live there, needs to try and be decided, between you and her. If that can not be done, the Judge would step in at that point and decide. Right now, both of you are on title and both have a legal right to the home. As long as you are on the loan, the payments need to be made. If there is equity in the home, it may be best to sell it and split the profit. If she is unable to make the payments on her own, there would be no reason to refinance the loan and place it solely in her name, since it could result in the loan going into default and the home being foreclosed on. If you were to be awarded the home and still want to live there, the Judge may order you pay her a portion of the equity, assuming there is some and she be ordered to transfer her legal interest to you, so that you are the sole owner. If you are unable to pay the mortgage and have her live there, as well as pay for your own housing, that is also an issue for the Judge to consider, when deciding what to do with the home. Like I stated above, a lot depends on if there is equity in the home. If there is none, then this may be a situation where she is willing to walk away and let you have it, since you are on the loan or if you do not want this either, to try a short sale.

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Customer: replied 4 years ago.

So just to clarify, if we can't agree on the house, I could just file with the courts to determine all that. I'm assuming if I'm not living there now but paying, there isn't some goofy ruling that could continue making me pay the mortgage while she lives there like spousal maintenance or something since it was a no-fault divorce.

If she wanted to preserve her claim to alimony and equitable distribution, she would have needed to file these claims with the court prior to the Judgment of Divorce being granted. If the judge signed the divorce prior to her asserting either of these claims, she likely could will be barred from later bringing these claims in front of a judge. Both equitable distribution and alimony do not have to be decided prior to a Judgment of Divorce, they merely have to be pending. As such, if this can not be worked out, the matter would have to go back before the court, so it can be decided what should be done with the home.
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Customer: replied 4 years ago.

Ok, thank you for the information.

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