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Man’s (and Woman’s) Best Friend

Posted by on Apr 18, 2017 in Blog, Estate Planning | 0 comments

Man’s (and Woman’s) Best Friend

Guest Feature: Man’s (and Woman’s) Best Friend By Jennifer Jackson Bell * Whoever said “diamonds are a girl’s best friend” obviously never owned a pet. Many people, myself included, think of their pets as their fur-babies or fur-children and dote on them as such. There is no doubt that pets hold a special place in our hearts but they also hold a special place in our wallets as well. Owning and caring for a pet takes love, and time, as well as financial responsibility. After we are no longer capable of caring for our beloved fur-children we want to make sure they are taken care of, as we would our human children. However there is one major problem we face: pets are seen as property in the eyes of the state, especially when dealing with wills and probate. This means that you cannot leave money or any type of property to your pet after your death. The only way to ensure that your fur-child is doted on and spoiled as much as he/she was when you cared for him/her is to create a Pet Trust. What Exactly is a Pet Trust? A pet trust is a legally sanctioned arrangement providing for the care and maintenance of one or more companion animals (or fur-children) in the event of a grantor’s (owner’s) disability or death. A pet trust is created like every other form of trust, with a Grantor (the owner), Grantee and Trustee (the pet). Typically, you will appoint someone you trust first and foremost and whom you would want to love and care for your pet after your incapability as Trustee. The trustee will hold property (cash, for example) “in trust” for the benefit of your pet(s). The trust will continue for the life of the pet or until the death of the last living pet included in the trust. Why Should I Have One? Trusts are legally enforceable arrangements. A Pet Trust ensures that your wishes for your fur-children will be carried out, and any and all directions regarding your fur-children will be followed. A trust can be very specific.  For example, if your cat only likes a particular brand of food or your dog looks forward to daily romps in the park, this can be specified in a trust agreement. If you want your pet to visit the veterinarian four times a year, this can also be included. Since as pet owners, we know the particular habits of our companion animals better than anyone else, we can describe the kind of care our fur-children should have and list the person(s) who would be willing to provide that care. Establishing a Pet Trust gives owners peace of mind. By establishing a Pet Trust an owner can ensure their beloved animals will be given the care and resources they are accustomed to even when the owner is no longer capable of doing so herself. Without a pet trust, sometimes animals end up at the local shelter or even on the streets. Without a solid plan to care for your pets you may be risking their lives or their care. * Ms. Bell is a third-year law student at the Norman Adrian Wiggins School of Law at Campbell University. She is originally from Eastern North Carolina and intends to practice law in the area...

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Is Your Custody Order Out of Date?

Posted by on Apr 18, 2017 in Blog, Child custody, Court, Family Law | 0 comments

Is Your Custody Order Out of Date?

Is Your Custody Order Out of Date? When it comes to custody cases, most parents usually either sign a separation agreement, sign a consent order (order by agreement) or they go to court and have an order entered by the court after the trial. The drama dies down and hopefully life goes back to normal, at least as normal as things can get after a dispute of this nature. Life changes. As the years pass, children grow, parents get married or remarried and maybe a few more kids are added along the way. Especially when parents are young, they become more mature. Once the threat of on-going court battle is has subsided, parents may stabilize as co-parents and begin to trust each other. The best parents simply do what needs to be done. They might not rely on the custody order after a couple of years because they develop a co-parenting routine. As Time Goes By . . . Assume you and the other parent reach an agreement about your 4 year old son. It calls for him to be with you every other weekend from Friday at 6:00 p.m. until Sunday night at 6:00 p.m., every other Wednesday night, and two weeks during the summer. For a number of reasons, when your son is 6 and starts school, both of you agree it would be in his best interest to live with you and reverse the visitation schedule. This works great for years. What’s The Problem? The problem is that the old custody order remains in effect as is unless and until it is changed, or it “expires” when a child reaches the age of 18. Now assume that your son is 11, and the other parent suddenly tells you he or she will now be going back to the court-ordered visitation schedule, and your son will be staying there full time until further notice. You rush home, dig up the custody order, blow the dust off and see that it only gives you visitation every other weekend and Wednesday nights. From that messy situation, it is obvious you have a real problem. If the order had been updated, this problem could’ve been avoided. When you no longer agree with the other parent, you risk being held in contempt of court if you fail to abide by the custody order. Ultimately, a judge has the ability to enforce the order by whatever means is necessary, including incarceration. If you suddenly need to rely on your custody order in a situation like the one described above, you aren’t protected. This often rears its ugly head when one of the parents has a new romantic relationship, remarries and/or has a new child. How Do You Update a Custody Order? In North Carolina, when both parents agree that they need a revised custody order (i.e., an “updated” order), the process is fairly straight-forward. After an attorney prepares a motion and consent order, or two lawyers negotiate about what is included in it, the parties sign it and voila, a new order is entered by the court. Sometimes, the judge requires both parents to appear briefly to tell him or her that consent is given to enter the new agreement as a court order. In our example above, not only would an updated order have clarified the living...

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Ex Parte Orders: When Will I Have My Day in Court?

Posted by on Apr 18, 2017 in Blog, Child custody, Court, Family Law | 0 comments

Ex Parte Orders: When Will I Have My Day in Court?

Ex Parte Orders: When Will I Have My Day in Court? The Courts and due process rights in the United States Constitution are built upon the right of each person to a fair trial. Fundamentally, a person who is served with a lawsuit has the right to respond in writing, by testimony and by evidence offered during the trial. Both parties may exercise the right to file motions asking the court to do something, seek documents in the possession of the other party (called discovery), and have an attorney issue a subpoena compelling a witness to testify or provide evidence to the court. The law gives each person his or her day in court. Exceptions to the General Rule While this holds true with family law cases, there are times when there is an extreme emergency serious enough to warrant the court entering a temporary order based only on one side of the story. If you’ve been in court maybe you’ve heard the term ex parte but no one ever explained it. It is a Latin term that means something takes place based on only one side of the story. In this context, it means the court makes a ruling without the other party being present. EPOs are generally disfavored in court. The judge must weigh the seriousness of the allegations and decide whether they justify delaying the due process rights of the other party. Judges take the facts of each individual situation into account on a case by case basis. There is no “one size fits all” approach to deciding whether an EPO is justified. For example, when a spouse or other family member attempts to cause bodily injury to the other, or intentionally causes bodily injury to him or her, the court might enter an ex parte order (EPO) in the form of a domestic violence order. When the judge grants the EPO, it is served on the other party who must obey the order even though he or she didn’t have an opportunity to tell his or her version of what happened. But, he or she will be entitled to his or her day in court shortly. How Does the Ex Parte Order Play Out? If someone is served with an ex parte order, time is of the essence. An EPO is usually served with several documents, and includes notice of the date and time for the trial. People are often upset because there is a hearing date of only about ten days from the date they were served. Ironically, a short time before having a trial is meant to help the person who gets served with an EPO. The policy of the law is to give that person the opportunity to be heard in court as soon as possible. At the hearing, both sides are given the chance to tell the judge what happened and offer any evidence. For example, in a domestic violence case, the person against whom an EPO was entered might offer testimony about what happened and a photo or e-mail explaining that version of what happened. In family law cases, EPOs might be entered in child custody cases or even in certain equitable distribution cases when one party begins liquidating marital assets. Amy A. Edwards is a family law attorney in Greenville, NC, certified by the NC State Bar Board of Legal Specialization as...

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What Do You Want Out of the Divorce Process?

Posted by on Apr 18, 2017 in Blog, Family Law, Working with your lawyer | 0 comments

What Do You Want Out of the Divorce Process?

What Do You Want Out of the Divorce Process?  People don’t live their lives expecting litigation, a terrible separation or the other parent taking their children away from them. Although it is not always the case, people often find themselves overwhelmed by unexpected circumstances by the time they make it to the attorney’s office. It is not uncommon for a client to schedule an appointment after recently discovering the other spouse (or the other parent) has been making plans to separate for some time. Almost all cases begin in the “triage” stage, when someone’s day to day life has just been turned upside down. The “emergency phase” of a case usually involves necessary arrangements for the short-term, such as where to live, what to do about immediate financial support, and when a parent has visitation with a child. Once that emergency phase of the case settles down, perhaps there is a temporary agreement or temporary court order in place. What Happens Now? After the emergency phase of a case, the real work begins. Take inventory of what matters in your life. Clients who seek counseling or therapy tend to uncover important goals, especially when they’ve made accommodations for their mates over many years. Turmoil can provide new opportunities. You might decide to return to school or consider relocating to another city or state. Or, you want to make healthy long term co-parenting a priority not only for you children but your future grandchildren so your family won’t have to endure drama at events such as graduations and weddings. A career change might also be an option based on your new situation. Talk To Your Attorney Like any other relationships, attorney-client relationships involve all kinds of personalities. Some clients have clear objectives and take an active role in their case, others don’t. By default, your attorney should be advocating for as much of the marital property as possible, and if you are a parent, the goal is to get as much time with the child or children as possible. That’s obvious. But there’s so much more than that. Make sure to share your personal goals with your attorney if he or she doesn’t specifically ask. Although our job is to advocate for you, we will do a better job of advocating if you clearly express your plans. For example, we could try to structure alimony to coincide with the completion of college, or maybe it makes sense for one parent to remain in the family home until the youngest child reaches eighteen. If you are considering a new job one hundred and fifty miles away, we should take that into account when we analyze the visitation time with the children and the calculation of child support. After all, it is your life and although we advocate for you, the decisions are yours to make.   Amy A. Edwards is a family law attorney in Greenville, NC, certified by the NC State Bar Board of Legal Specialization as a Family Law Specialist, and is licensed only in NC. Laws change. This article is current as of April 2017. www.AmyEdwardsFamilyLaw.com © 2017....

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What Exactly is an Estate Plan?

Posted by on Apr 18, 2017 in Blog | 0 comments

What Exactly is an Estate Plan?

Guest Feature: What Exactly is an Estate Plan? By Jennifer Jackson Bell* Stated in the simplest terms, estate planning is the practice of preparing for a person’s eventual demise. As morbid as it may seem to think about your death, planning for the end or rather what will happen to your belongings or loved ones afterwards is an important yet most-often complicated task. This is why hiring an Estate Planning attorney is paramount and also, very beneficial. An attorney will be knowledgeable of the current tax law governing gifts, estates and transfers. With the help of an attorney you can minimize the taxes your loved ones will face after your death. A more inclusive definition of Estate Planning is the process of anticipating and arranging, during a person’s life, for the management and disposal of that person’s estate during their life and at and after their death. An estate is the worth of a person. In essence it is the sum of a person’s assets minus any liabilities. Assets can include: real estate, jewelry, cash, vehicles, equipment, antiques, life insurance policies, etc. Basically an asset is anything of value. Liabilities can include: credit card debts, mortgages, tax debt, child support, etc. Liabilities are things for which you are responsible, principally financial obligations. Leaving your loved ones with items from your estate is more complex than it may seem, especially when it comes to the applicable tax law. You may be thinking, but I don’t need an estate plan, I’m not rich! Don’t make the mistake of overlooking your assets because you don’t think you have much or any for that matter. An estate plan is an important financial document for everyone to have. With only a few exceptions, everyone has an estate. If you own something of value and you would like to leave it to someone or some place after your death, you have an estate. And whether you know it or not, you also have an estate plan, but one you had no control over or decisions about. North Carolina has made one for you; actually they have one for every person that does not put an estate plan into place of their own. When a person dies without an estate plan, probate governs how their estate will be dispersed. Probate is a court-supervised process that gathers a person’s assets and distributes them to creditors first then inheritors in a precise manner based upon specific legal statutes. Basically, if your estate goes to probate without an estate plan in place, there are specific rules that cannot be avoided on how your valuables will be handed out. This is why having an estate plan is extremely important. You should have a say in how your affairs are handled, even after your death. A basic estate plan includes a will and/or trust. A will is a personal declaration of your intentions about the disposition of your valuables after your death. Trusts involve the transfer of your, the grantor, valuables to an individual, the trustee, who manages these assets for the benefit of one or more others, the beneficiaries. Wills and Trusts can be particularly convoluted, which is why it is always important to consult an attorney before beginning to prepare either. * Ms. Bell is a third-year law student...

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Collaborative Family Law: Are You Both on the Same Page?

Posted by on Apr 17, 2017 in ADR - Alternative dispute resolution, Blog, Child custody, Child support, Equitable Distribution of Marital Property and Debt, Family Law, Military families, Privacy, Relationships, Resources | 0 comments

Collaborative Family Law: Are You Both on the Same Page?

Collaborative Family Law: Are You Both on the Same Page? In the traditional setting of court, the parties are adversarial. This means they are on opposing sides of an issue, each competing for a ruling from the judge. Court tends to be a win/lose scenario. Instead of being adversarial and working against each other, the objective for both parties in Collaborative Family Law is to find a win/win solution to their dilemmas. The parties collaborate in an effort to create the best settlement they can. All four people, both parties and both attorneys, brainstorm in a series of what are called four-way meetings. Because the parties aren’t adversarial, the attorneys and parties discuss things among themselves in a civil manner during the four-way meetings. There is no cross examination. Instead of the courtroom, they usually meet in an office of one of the attorneys. How Does Collaborative Family Law Work? Collaborative Family Law (CFL) is an alternative dispute resolution authorized by the NC General Statutes. It is used only by the agreement of both parties and can be used for almost any type of family law dispute, including child custody and support, alimony, and equitable distribution of marital assets and debts. The attorneys and their clients sign a CFL pledge. In traditional family law cases, the spouse with more money to spend sometimes drags out the process forcing the other spouse to settle because they can’t afford to go to court. The CFL pledge includes a commitment not to “starve out” the other party. If either party decides to litigate (i.e., go to court), the CFL process ends and both parties have to hire new attorneys. This a built in deterrent for starving out the other party. However, the parties can include in their pledge an agreement to use mediation or arbitration if they can’t reach an agreement. By doing that, their attorneys can represent them throughout all three processes, CFL, mediation and arbitration, if necessary, never going to court.  Am I Protected by My CFL Attorney? Yes. Attorneys facilitate the agreement meaning the parties take an active role in the case. If someone suggests a course of action that is not feasible or fair, the attorney advises him or her against it. Both attorneys meet with both clients in four-way meetings. But each attorney also meets with his or her client privately at his or her office. In fact, CFL relies on an attorney’s good screening process in the first place. Common issues to navigate in all types of family law cases include tax consequences of settlements, the division of retirement accounts, cash-flow and support, and how to create an effective visitation schedule. Is CFL Appropriate For Your Case? A North Carolina attorney is required to consider whether CFL is appropriate for a client before advising a client to participate in CFL. If there is domestic violence, an emergency that calls for a court order, a client isn’t prepared to be (or doesn’t want to be) self-directed in what he or she wants to do, or there is a serious power imbalance, the case is not appropriate for CFL. Using an attorney experienced in both CFL and trial work (i.e., litigation) means the attorney can meaningfully advise the client of the benefits and drawbacks of each process. After all,...

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Ten Things Your Lawyer Wishes You Knew

Posted by on Apr 17, 2017 in Blog, Working with your lawyer | 0 comments

Ten Things Your Lawyer Wishes You Knew

Ten Things Your Lawyer Wishes You Knew By Amy A. Edwards # 1. WARN US. If you have assaulted your spouse, been arrested or highly intoxicated in the presence of the kids, had compromising photos taken of yourself, or struggled with substance abuse, we need to know! People are naturally reluctant to tell us the negative or embarrassing things they have done. If you are embarrassed to discuss something, tell us by e-mail or in a letter. Truly, we’ve seen it all. Your ex knows about it which means the other attorney knows. The only person who can help you wade through it is your lawyer, who can’t help you if he or she is the only one in the room who is clueless about what happened. In that event, we are left to watch as you crash and burn during cross examination. With advance notice, we can try to minimize it or at least take out the sting. We might be able to ask you questions about it in court first, allowing you to explain it in your own terms, robbing the other attorney of the chance to frame it the way he or she chooses. #2. YOU ARE AN OPEN BOOK. In divorce court, there is no such thing as privacy. Bank statements, credit card statements, e-mails and any number of other things will be analyzed. In a custody case, is it noticeable that you eat fast food every day for dinner? Do you use your credit card at the liquor store twice a week? Did you buy flowers for your girlfriend with whom you are cheating? Will your bank account statement indicate payment for a membership for an online dating account or pornography? Believe it or not, this happens all the time. #3. PICK YOUR BATTLES. A good (or at least a better) outcome might mean cutting your losses. Unlike personal injury cases, where the insurance companies are essentially paying the tab, divorce and family law cases are paid out of pocket by individuals who are going through what is probably the most emotionally and financially stressful time of their lives. Even if finances are not a problem, don’t waste your money paying the hourly rate of several hundred dollars to  argue over a five year old lawn mower or a coffee maker. I actually had a client who added gravy mix to her list of property. In custody cases, consider whether it is worth it to have a trial on whether you get three weeks of me in the summer or four weeks. Are you paying your attorney $2,500.00 to argue over a $25.00 per month difference in child support ($300 per year)? Think about the original goals of your case. #4. WATCH YOUR SOCIAL MEDIA. Anything you post on social media is fair game. If you have a photo of yourself at a barbecue drinking a beer, don’t be surprised if it drifts back to you during cross examination as an 8×10 glossy to maximize the effect of the picture in the custody case or other case involving marital fault. It doesn’t look innocent in the cold glare of the fluorescent light of the courtroom sitting two feet away from the judge. Will your kids see it? Remember that cursing, acting flirty, staying out at night, going to bars, or wearing a t-shirt with an inappropriate picture or vulgar language can also create mischief. Perhaps most importantly, monitor what your kids are posting. #5. PAY US. Talk with your attorney about his or her fees when you see the first sign...

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Mudslinging in North Carolina Child Custody Cases

Posted by on Apr 17, 2017 in Blog, Child custody, Child support, Court, Family Law | 0 comments

Mudslinging in North Carolina Child Custody Cases

Mudslinging in North Carolina Child Custody Cases According to www.dictionary.com, mudslinging is “an attempt to discredit one’s competitor, opponent, etc., by malicious scandalous attacks.” In North Carolina, a no-fault divorce means that the only reason you need for a divorce is a one year separation. Division of marital property is generally an equal division, and the only type of fault the court will entertain is financial fault related to assets and debts. While marital fault isn’t required for alimony, it is specifically listed in our state laws as a defense and in some cases the sole reason alimony is or isn’t awarded. While the law does not call it fault or marital fault, the behavior of parents becomes front and center in a child custody case. There are rules of evidence, rules of procedure, and local rules for each court, and the law itself. However, a judge has the authority in his or her discretion to hear almost anything if it is relevant to a child’s welfare. A parent’s judgment and fitness can be demonstrated by a wide range of events. Is Mud Slinging Inevitable? Probably, unless you choose alternative dispute resolution. See more about in the last paragraph of this article. Based on my experience, I don’t think the majority of people truly want to sling mud at the beginning of a case, although they are often hurt and angry. They usually just want to get a custody agreement as quickly as possible at a reasonable cost and move on with their lives. But as litigation takes its course, the allegations of bad behavior operate like the threat of nuclear weapons. When one side starts to pile them up and test them, the other side takes offense and acquires his or her own stockpile and begins to test them. Many cases settle through negotiation and mediation but when they don’t, the slinging accelerates rapidly thereafter. By the time a child custody case reaches the courtroom, mudslinging seems inevitable regardless of whether a parent is trying to avoid mudslinging or be the one slinging. Some end up doing so if only because they feel a response to the other party’s allegations is necessary. The Down Side of Mudslinging No parent who testifies is without sin. By definition, the very nature of your past relationship is intimate. When you begin dredging up things from the other person’s past, there will always be a response which will usually include your deepest darkest secrets as well. Fault-based alimony trials can be intense but the worst case scenario is a long and vicious custody battle. In the worst of the worst case scenario, an outsider looking in might wonder if the judge should award custody to either parent. Meanwhile, the family, friends and loved ones sit in the audience for the feature presentation. Once the allegations have been made, they can never be undone. Even when the children don’t testify in the case, they are usually the main causalities of the slinging. Children grow up. Anyone has the right to access a recording of a trial or a copy of the file that includes the documents each parent files at the courthouse. Once a lawsuit is filed, it becomes public record, meaning anyone can search the records and see all the “dirty laundry.” How Can You Minimize the Damage? First, if you’re in a custody case, try to step back and look at the case from your child’s perspective. What you say about his or her mom or dad matters. Is it possible to compromise and reach an agreement that is...

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What’s the Servicemembers Civil Relief Act (SCRA)?

Posted by on Apr 17, 2017 in Blog, Court, Military families | 0 comments

What’s the Servicemembers Civil Relief Act (SCRA)?

What’s the Servicemembers Civil Relief Act (SCRA)? The Servicemembers Civil Relief Act is a federal law that is intended to support service members (SMs) while they are on active duty/deployed. In part, the law exists to prevent default judgments from being entered against a SM who is overseas and/or unable to manage his or her responsibilities related to the lawsuit because of his or her service. In some cases, it also offers general protections that include terminating a residential or vehicle lease early and limiting interest on bank loans, finance companies and credit cards to 6%. The Act also gives SMs the opportunity to seek a 90 day stay from the court. A stay essentially “freezes” a case so the SM can have additional time to concentrate on his or her military duties before addressing the lawsuit. The 90 day stay isn’t automatic. The SM must file a request for it. If applicable to the SM, the request may be for a stay that is longer than 90 days. What happens during a stay? Generally, nothing happens during a stay but it is possible the court could address “administrative” matters, such as checking the status of the SM’s ongoing duties to determine whether the stay should remain in effect after 90 days, for example. Because the SCRA is a federal law, every state must comply with it. If the SM is served with a lawsuit but is not given the opportunity to exercise his or her right to seek a stay, the consequences are serious. A judge’s ruling is at risk of being set aside (legally erased) later if a stay should have been given but was not. How Do SCRA Cases Get Started? The SCRA is triggered when a lawsuit is filed against a SM. In family law cases, this includes child custody or support, alimony and/or equitable distribution (marital property division). Courts in Pi County usually appoint a volunteer attorney to discuss the SCRA rights with the SM to determine whether he or she meets the legal standard for seeking the 90 day stay. If so, the attorney helps the SM file the request for the 90 day stay with the court. The attorney is only appointed to make sure the SCRA rights are protected, not to represent the SM in the case itself unless the SM chooses to hires that attorney for the case. Does the SM Qualify to Seek a 90 Day Stay? If the SM’s military duties materially (significantly) affect his or her right to defend the lawsuit because the SM is unable to appear in court, and he or she has no authorized leave, the SM might qualify to ask for the 90 day stay. This right is extended to those who are not only on active duty or deployed, but for those who cannot be in court due to sickness, wounds, leave or other lawful purpose. When a SM requests the stay, the court expects him or her to provide alternate times of availability. Do the SM’s Duties Materially Affect His or Her Legal Rights? With the appointed attorney, the SM seeking a 90 day stay must explain how his or her military duties materially affect his or her legal rights. Perhaps the SM is overseas in the field for the next 73 days and has no leave. In an alimony or equitable distribution case (dividing marital property), the SM might not have access to the records that are necessary for his or her attorney to move...

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Five Facts You Need to Know About Your House in a North Carolina Divorce

Posted by on Apr 16, 2017 in Blog, Equitable Distribution of Marital Property and Debt | 0 comments

Five Facts You Need to Know About Your House in a North Carolina Divorce

Five Facts You Need to Know About Your House in a North Carolina Divorce #1 The names on the deed and the names on the mortgage debt can be two different things. People don’t always realize their ownership rights to property might be different from their mortgage obligation. As most people know, a deed conveys ownership of the property to the purchasers. However, the mortgage is a promissory note which can be signed by one or both property owners. Even when there are two property owners, as reflected on the deed, the bank or mortgage lender might make the loan in the name of only one property owner instead of both. This can happen when the other owner is self-employed and has irregular or sporadic income. Sometimes, the other owner has bad credit or a high debt to income ratio (too many debts for his or her income). When the mortgage note is only signed by one owner, only he or she is legally responsible for the actual payment of it, although both spouses might own the property together. In North Carolina, the mortgage note is secured by a document called a deed of trust, which is recorded at the Register of Deeds. It is the actual lien against the property. Sometimes the spouse who isn’t responsible for payment of the mortgage signs the deed of trust, allowing the lien to be placed against the land in which he or she has ownership interests. Just because the other owner signed the deed of trust doesn’t automatically mean he or she is also responsible for payment of the loan. In other words, we can’t usually tell whether the other owner is responsible for payment of the mortgage unless we see the mortgage note. #2 In the vast majority of cases, the only way to “remove” your name from the mortgage debt in joint names is to pay it off. When spouses separate and the mortgage obligation is in joint names, the person moving out of the house still has the mortgage debt on his or her credit record as an on-going debt even though he or she no longer lives there. If mortgage payments are delinquent, it is a problem for both spouses, not just the one who remained in the residence. Lenders won’t usually remove someone’s name from the mortgage note. The routine way divorcing spouses have one named “removed” from the mortgage debt is to pay off the debt. The two main ways to pay off a mortgage include selling the house and using the sales proceeds to pay off the debt, or refinancing the debt. Usually, a refinance in the context of a divorce means the old mortgage in both names is paid off when the spouse who keeps the house gets a new mortgage or home equity loan in only his or her name. #3 One spouse “assuming” the joint mortgage means very little protection for the other spouse. When one spouse agrees to legally “assume” payment of a mortgage that is in joint names of the parties, it means one spouse agrees to accept responsibility for the mortgage payment. It is an agreement that can only be made between the spouses. Because a joint mortgage includes a mortgage note signed by both spouses, both remain legally obligated to pay the debt. The mortgage note is an agreement made by the bank as the lender and the spouses as the borrowers. Spouses can’t just change the terms of the mortgage note they signed unless the original mortgage is paid off. There...

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