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Ely, Counselor at Law
Category: Legal
Satisfied Customers: 102601
Experience:  Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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My wife and I are separated. She lives in the house. I am

Customer Question

My wife and I are separated. She lives in the house. I am primary on the deed, and the mortgage is in my name. She has a lawyer who is saying that it is her house now because she lives there and I moved out. She is threatening to change the locks. Is she legally able to do so, and is the house hers, even though the mortgage is in my name, and my name only. However, her name is XXXXX XXXXX deed.
Submitted: 4 years ago.
Category: Legal
Expert:  Ely replied 4 years ago.
Hello, my name is Ely. Welcome to JustAnswer. Please note: (1) this is general information only, not legal advice; and (2) my function is to give you honest information and not necessarily to tell you what you wish to hear. There may be a slight delay between your follow ups and my replies as I reply.

I am sorry for your situation.

I am primary on the deed, and the mortgage is in my name. She has a lawyer who is saying that it is her house now because she lives there and I moved out.

This is not true. It is not good to listen to her attorney because they have her interest in mind, not yours, and may trick you into giving up the property.

It does not matter who lives in the home now - if your name is on the deed and the home was purchased during the marriage (I assume it was, let me know if it was not), then it is community property. That means both of you have an equitable interest in it.

Either you or her can get the property in the end should you decide to divorce. The Court has ultimate discretion when it comes to deciding who gets the property, based on the following subjective factors: (A) The income, property, and liabilities of each party at the time the division of property is to become effective. (B) Any obligation for support arising out of a prior marriage. (C) The duration of the marriage and the age and physical and mental health of both parties. (D) The need of a parent with custody of a child or children of the marriage to occupy or own the marital residence and to use or own its household effects. (E) The expectation of pension, retirement, or other deferred compensation rights that are not marital property. (F) Any equitable claim to, interest in, or direct or indirect contribution made to the acquisition of such marital property by the party not having title (G) Any direct or indirect contribution made by one spouse to help educate or develop the career potential of the other spouse. (H) Any direct contribution to an increase in value of separate property which occurs during the course of the marriage. (I) The liquid or nonliquid character of all marital property and divisible property. (J) The difficulty of evaluating any component asset or any interest in a business, corporation or profession. (K) The tax consequences to each party. (L) Any other factor which the court finds to be just and proper. (North Carolina Statutes - Chapter 50 - Sections: 50-20). So either you or her can get the property in the end, or, the property can be ordered sold, and profits split.

Until this is done, either party can ask for temporary orders as to who gets the property and it can be either party. No, the home is not automatically hers just because she lives there. Unless there are orders to the contrary, you may reenter the property. If she changes the locks, you can use a locksmith - it is your property - simply have the paperwork to show it. Without any temporary orders that ask you to keep away and/or give the property to her meanwhile, the police should not ask you to leave for it is YOUR property.

Good luck.

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