Dear Readers,
Today’s Ask Carolyn addresses the third letter from a perplexed soul in the legal system, and I call on all the attorneys involved to get to the bottom of the writer’s problems. He is a faithful reader of Rhino Times and he deserves an end to his legal mess.
Dear Carolyn,
Went to court today and was there four hours. My ex-wife did not show up. Her attorney came three hours late. My attorney Norman Smith and her attorney Lee Cecil talked to the judge, and Mr. Smith rushed out the door and told me to come back Nov. 6 at 10 a.m. I tried to ask about my quitclaim deed to my home, but he was in too much in a hurry to get out of there. How can I get her to sign the quitclaim? I gave Mr. Smith a copy of the Deed. Mr. Smith said my wife’s attorney was going to try to make her get a loan on her teacher retirement and pay the $15,000 she owes me. I am still confused and frustrated about the whole thing. I can sell my land for $50,000 if she would only sign the quitclaim deed.
Carolyn Answers …
The court system can be frustrating, and the court system frequently takes great patience. Also, attorneys often have tight time schedules, and if Mr. Smith spent a long time waiting for opposing counsel, perhaps he needed to be in another courtroom that was waiting for him. Ask Carolyn has now talked to Mr. Smith twice, and he is trying to help you finish your case.
I took the opportunity to call Mr. Cecil and Mr. Smith. I talked with Mr. Cecil first, who was reluctant to make very many statements to the press. This is understandable. He did say, however, that the motion has been calendared for Nov. 6 and that he had not received a copy of the motion. He said that he was surprised by the call from the court and that he had no notice of the contempt motion. I cannot conclude why Mr. Cecil did not have notice as there are a number of things that could have happened, including facsimile machine failure, failure of the United States Postal System to deliver or clerical error.
Attorney Norman Smith also returned my call on behalf of Rhino Times. He indicated that there had been some sort of service problem with regard to the recent court date related to the fact that your ex had a prior attorney. Also, he said that if you wanted to sell the property, Mr. Smith would obtain the deed from the other attorney and your ex to allow you to sell the property. Mr. Smith will work hard for you.
I ask that you patiently wait and then go to the court hearing on Nov. 6 at 10 a.m. In the meantime, please go by to see Mr. Smith. Explain to him that you need the situation resolved.
I would request a report after the Nov. 6 court date, and I want to follow this case for the Rhino Times until it is concluded. My best to you.
Dear Carolyn,
I was married for 14 years to my husband, and we are going through an equitable distribution trial. I inherited from my father a residence in Greensboro. At the time I inherited the residence it was paid for and was worth approximately $100,000. The home is worth about $140,000 now. After I got married, my husband and I moved into the home, and we lived there approximately 12 years of the 14-year marriage. During the time that we lived together in the home, we took out a mortgage of $70,000. We used all $70,000 to renovate the kitchen and to build a back patio. At the time of our separation, we still owed $20,000 on the mortgage, but we paid back $50,000 of the mortgage during the marriage out of our earnings. We both work. I did not put my husband’s name on the property. I had enough credit to get the $70,000 loan without him, although he did sign that loan. I am in a mess. My lawyer and my ex-husband both say all $140,000, minus the $20,000 of debt for a net of $120,000, is marital property. Do I really owe my ex $60,000? Can you help me? Is this true?
Carolyn Answers …
Based upon your facts, I think you owe your ex $20,000 and not $60,000. This is a complex question under our property division in divorce statutes, aka equitable distribution. It is my opinion based upon the facts that you are giving me that the real estate you describe is dual or mixed property, which is a mixed form of marital and separate property. The separate component is your inherited portion. The marital part is the mortgage payback and improvements during the marriage.
North Carolina recognizes the “source of funds” approach. The marital estate and your separate estate are entitled to a proportionate return on the investment. In other words, to the extent that the marriage created the property value, it is marital. To the extent that you inherited the property, it is your separate property not shared in the divorce division.
The marital contribution is $50,000 from the pay down of the loan of $70,000 during the marriage with marital earnings from your work. The separate property contribution you made is your $100,000 inheritance. That means the total contributions to the property have been $150,000 ($100,000 separate plus $50,000 marital). This means that the fair market value at the date of separation should be divided two-thirds ($100,000/$150,000) to you as your separate property and one-third ($50,000/$150,000) to the marriage. The net value of the real property to be divided is $140,000 fair market value minus the debt of $20,000, or $120,000 (equity or net value). The separate property two-thirds mathematically is $80,000 of the $120,000, which you should receive. The marital one-third is $40,000, which you should receive presumptively one-half of, or $20,000. Your total recovery should be $80,000 plus $20,000 for a total of $100,000. Of course, this assumes that there’s not much appreciation between the date of separation and the time of distribution. Your ex should receive the other $20,000.
There is a new Court of Appeals case that is very helpful in understanding all of these rather complicated principles of equitable distribution (divorce property division). Keep in mind, this is an interesting and difficult area, even for attorneys who are not family law specialists. You should get the case of Uli v. Uli that was decided in the North Carolina Court of Appeals last month. That case thoroughly goes over the “source of funds” theory. I think the Uli case will answer all of your questions.
Send your questions on family law and divorce mattter to askcarolyn@rhinotimes.com, or P.O. Box 9023, Greensboro 27427 or at Ask Carolyn’s comment section at rhinotimes.com. Please do not put identifying information in your questions. “Like” Ask Carolyn on Facebook and follow on Instagram and Twitter at Ask_Carolyn.
Note that answers are intended to provide general legal information and are not specific legal advice for your situation. The column also uses hypothetical questions. A subtle fact in your unique case may determine the legal advice you need. Also, please note that you are not creating an attorney-client relationship with Carolyn J. Woodruff by writing or having your question answered by Ask Carolyn.
