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Eric Carl Trosch

Eric Trosch’s Answers

81 total


  • Can the step father legally stop me from taking my son during a visitation if the step father is waiting for the covid results?

    Eric’s Answer

    It sounds like you do not have a custody order in place. That means the mother and you have equal rights to the child. It is unlikely that the police will remove the child from his Mother's care and give the child to you unless there is some sort of emergency risk to the child (DSS would be involved in that situation). The same would be true if your son was in your house. Regardless, it is normally a bad idea to try and use the police in this manner. It can be very upsetting to the child and may damage your long term custody case. The best path would be to hire a juvenile lawyer to help the family or you may want to just reach out to CPS to see what you can do.

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  • How can I stop CPS from taking my niece from my sister in laws without letting me get her first? I have nothing on my background

    Eric’s Answer

    If there is an emergency situation then DSS will need to remove the child to protect the child from the situation. You can reach out to CPS and let them know you are a family member. Maybe not initially, but at some point CPS will look for a family member that is appropriate to care for your niece while the process goes forward. NC law requires that if there is suitable placement with a family member that should be looked into. The CPS will need to investigate your situation to ensure that your home is a suitable and safe place for your niece. Unfortunately, this does not often happen immediately in an emergency situation like this.

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  • Can my husband and I create our own separation agreement and have an attorney notarize it and make it legally binding?

    Eric’s Answer

    The short, but most accurate answer is it depends on how well you draft the agreement. Typically, nonlawyers or even lawyers that do not practice family law do not draft the best agreements. Often times people unintentionally draft provisions that may be contradictory or not reflect the deal that they reached. This can be very expensive to untangle and I have had to do that on many occasions.

    Also, if you are drafting a contract regarding parenting time and custody issues, it will be very difficult to enforce. A better practice is to have a consent order that incorporates your agreement and then have the court sign off on it. This makes it easier to enforce later.

    You also said the agreement is equitable which has a very specific legal meaning. Hopefully, both you and your spouse spoke with an attorney to know what rights you are entitled to. Only then will you know whether the terms are equitable under the law.

    The best practice is to at a minimum speak with a lawyer to understand your rights. Then you can know what you are agreeing to is equitable under the law. Then if you are fortunate enough to be able to work out the details with your spouse then you want to have a lawyer draft a document(s) (separation agreement and a consent order for the children issues) that reflects exactly what you and your spouse wants. Then you both would sign the document(s) and process them. Having the agreement match the intent of the parties is essential to ensure that the amicable relationship is maintained. Nothing causes more problems then having something pop up later that each spouse has a different opinion of how the issue should be handled and the agreement is either silent on the issue or worse ambiguous. This can lead to very expensive and protracted litigation, which is something that you want to avoid.

    I also doubt a mediation attorney will merely notarize the agreement for you (she would be taking a lot of potential liability when there are later problems with the agreement she did not draft), but you could possibly find a different notary to verify the document you create. It may or may not be enforceable depending on how well the documents are crafted.

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  • My husband and I just brought a home I’m on the loan and he is not he is on the deeds what happens to the house if I filed divor

    Eric’s Answer

    This is a very complicated question and more facts are needed to fully answer it. In North Carolina property is presumed to be marital when it is acquired during the marriage (from the date of marriage to the date of separation). However property bought in exchange for separate property (separate property includes premarital assets, gifts from your family and inheritance and some assets acquired after the date of separation) remains separate. Acquiring property such as a home is done over time too, part of the acquisition occurs with the down payment and then it is acquired over time through the payment of the mortgage. The title to the property (a joint bank account versus a sole bank account) is not typically determinative of whether the asset is marital or separate. There is an exception to this rule regarding only real property such as your home. With real property even if the down payment was from inheritance or premarital funds (i.e. separate property) if the property is titled (the deed) as husband and wife then it becomes a gift to the marriage unless you have an attorney prepare a document ensure that the down payment and/or the house itself shall remain separate property. After determining the property is marital then upon divorce all of marital the property will be divided. The law presumes 50/50 is fair but there many factors that could lead to an unequal distribution too.

    Another concern you may have it that if you separate who will be responsible for the mortgage. After you separate you can petition the court to require your Husband to pay the loan until the property issues are resolved or you can come to an agreement directly with your spouse. The tricky part here is your Husband will have the same rights to stay in your home, but the bank will only hold you liable for a missed payment. So essentially, you could be stuck temporarily making payments on the house to preserve your credit until you are able to hire a lawyer to get you into Court to try to require him to pay it.

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  • With a divorce can the judge force me to keep my name on the mortgage so that my wife and kids stay there.

    Eric’s Answer

    NC law presumes that a 50/50 division of the marital assets and debts is a fair division unless there are approximately 12 economic factors that might lead a judge to determine that 50/50 is not fair. The more difficult long-term issue for you is that the judge could order you to pay spousal support (“alimony”) to your Wife so that she can remain in the house and support herself. The judge could also determine that you should get the house in equitable distribution and then you would be able to sell the house. Court is very expensive so the attorney above is right that negotiating a settlement may be the most cost-effective way to go. The key is to have an initial consult with a family law specialist that can explain your rights to you before you move out or negotiate with your spouse. It is really important to know your rights before you start negotiating. After you know your rights, then you can hire an attorney to negotiate for you or do it yourself. After you come to an agreement it is essential that you have an attorney draft the appropriate documents to ensure that you can enforce the terms of the agreement.

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  • How do I go about getting alimony paid when my ex-husband has stopped paying with no notice?

    Eric’s Answer

    How you proceed will depend first on whether you have a court order for Alimony or a contract. To determine this, go to one of the last few pages and see if a judge signed the document or check on the first page and see if it says the word "Order" is in the caption. If so, you likely have an order and the advice above will help. If you have a "contract" or "agreement" then you will likely need to file a breach of contract action. The jurisdiction will depend on the language of the agreement and where everyone lives. Without more information it is hard to determine what your next steps are other then contact an attorney to help you figure out your next best steps. Also, you will want to discuss a cost benefit analysis with your attorney.

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  • My grandkids mother is unfit never gave my grandkids a stable home. She's taking them out of school in sc and taking them to vb

    Eric’s Answer

    It appears that the children have not lived in NC for several years and there is no active case in NC. Depending on how long the children have been in Virginia or SC, you should either contact a SC attorney or Virginia Attorney, immediately. Most states, including NC, provide ways for third parties, like Grandparents, to obtain custody of the children. If the children are in danger of abuse or neglect, then Social Services may need to be called.

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  • I am filling out a Quit Claim Deed form.

    Eric’s Answer

    This question may be more of a Family Law question, then a Real Estate question. The answer to your question will depend on how your divorce and/ or property division were resolved and what it is that you want accomplished. From the facts listed, I am not sure why you would need a quit claim deed. If you already own the property in your sole name, then I am not sure why you need your ex to sign a quit claim deed for you. If however you want to transfer the property from you to your ex, then you should require him to first get a refinance to remove yourself from the loan prior to transferring your interest to him. In either case you want to be sure you are complying with your Separation Agreement and/ or your Divorce related Orders. The key here is to get the appropriate advice for your situation from a Family Law specialist. Forms can be helpful, but using the wrong form or the right form in the wrong way can lead to a very expensive mistake.

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  • What can be done if the judge personally knows the plaintiff s family and a recuse has been denied.

    Eric’s Answer

    If the defendant does not have the funds to hire an attorney, then you should ask legal aide to assist in the matter. Unfortunately, this is not a typical case that legal aide would take, but again the defendant would need to ask legal aide to find out. If at this point the defendant cannot find enough funds to retain a private attorney and the Counsel for Children's Rights (GAL) is not appointed, then unfortunately the Defendant will need to proceed pro se (without an attorney representing the defendant or the children). There is also a self help center at the Mecklenburg County Courthouse that may be able to provide the defendant with some legal forms, but they do not give out legal advice.

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  • Do I have to give my child's father my new address?

    Eric’s Answer

    I agree with the prior posts as well, but there are other issues to consider as well. While the order does not require you to give him your address, the actual case law of North Carolina (as well our local judges) indicates that you should promote the relationship with the non-custodial spouse. Keeping the Father informed could be very helpful evidence for you at a Motion to Modify Custody hearing. Further, while letting the other parent know of major changes affecting the child is important legally, it is equally as important as a preventive measure. This simple omission has lead many aggrieved parents to file motions for contempt or motions to modify custody. Even if I am able to get a favorable result in court for my client defending against these claims, the lawsuits can be costly. So from a cost benefit standpoint it would appear to be a good idea to provide him with your address.

    However, there are also very legitimate and good reasons to keep him in the dark, that you may want to discuss with your lawyer. The most frequent circumstance is if there have been issues of domestic violence or stalking. In those circumstances, it may well be appropriate to keep your address secret. Prior to making that decision you should speak with a lawyer.

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