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Removing an ex-spouse from deed

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cdd1204

Junior Member
What is the name of your state (only U.S. law)? North Carolina

Husband and wife divorce. According to separation agreement, wife gets house and husband is supposed to quit claim interest. He never does. Separation agreement was never filed with the court and incorporated into the final decree. Wife wants to sell house and Ex-husband won't agree to quit claim. What can she do to get him to follow the terms of the agreement if she can't find the agreement and it wasn't incorporated into the decree?
 


latigo

Senior Member
I think the woman needs to consult with an experienced North Carolina attorney to see if the state has a “lost document rule” similar to Texas and others.

Example: In the case of A. G. Edwards & Sons, Inc. vs. Beyer the Texas Court of Appeals affirmed a lower court decision that applied the “lost document rule” in allowing the daughter of the deceased to prove the existence of a lost joint tenancy with right of survivorship agreement by parol evidence. Citing as authority:

"Where a written, signed contract is lost or destroyed, its existence and terms may be shown by clear and convincing parol evidence. See Bank of America, N.A. v. Haag, 37 S.W.3d 55, 58 (Tex.App.--San Antonio 2000, no pet.); EP Operating Co. v. MJC Energy Co., 883 S.W.2d 263, 267 n. 1 (Tex.App"

This Texas case is interestingly analogous because by specific Texas statute a joint tenancy with right of survivorship can only be proven by a writing signed by the account owner. Therefore similar in the respect that an agreement to convey land must be in writing.

There, of course, the writing it self was proven by extrinsic evidence rendering the exclusionary statute inapplicable.

If she is unable to prove the existence of the agreement, the backside is not so good. She and her ex will remain tenants in common owning an equal undivided interest in the home.

The only other option I can think of is the possibility of applying to the family court for a nunc pro tunc order amending the divorce decree by awarding her sole ownership in the home.

Unfortunately these situations are not uncommon where people skip the attorney and act pro se.
 

justalayman

Senior Member
I'm curious as to what the divorce decree did state, if anything, concerning the title of the house.

also, is there a mortgage on the home?
 

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