Property Distribution in NC Divorce and Family Law
- Equitable Distribution of Marital Assets
- Protecting your Assets before Distribution
- How Property Distribution Works
- Unequal Distribution of Assets
- Interim Distribution of Property during Separation
- Do I Need an Attorney for Property Division?
Equitable Distribution of Marital Assets
If you and your ex-spouse have not worked out how your property will be divided in a separation agreement, the alternative option is to file a lawsuit and have your property divided by the Court. This process is known as the “Equitable Distribution of Marital Assets.”
In a private separation agreement, you and your ex-spouse may divide your property however you wish. If you do not have a separation agreement or cannot come to an agreement with your ex-spouse, all property owned by you and your ex-spouse will be divided in an equitable split in court. North Carolina generally assumes a 50/50 distribution is fair but a judge will analyze your unique circumstances and determine if an unequal distribution is warranted in your case. There are 12 statutory factors which either party may allege to prove they are entitled to an unequal division of assets.
Marital misconduct is not a consideration in the distribution of assets unless it involves economic misconduct. For example, if one of the spouses spent $300,000 of marital funds to purchase a home for a girlfriend or boyfriend, that act can be used as “fault” in the property division since it depleted marital assets.
Protecting your Assets before Distribution
If there is a trust issue or acrimony with your ex-spouse, you may want to take immediate steps to protect your property from theft or concealment before distribution. You may be well advised to withdraw and secure at least half your bank or other cash assets to safe-guard your interests. You can also have your lawyer obtain a court injunction to prevent any wrong-doing by your ex-spouse relating to marital assets.
How Property Distribution Works
In the equitable distribution process in North Carolina, four steps must be taken. First, the assets and debts must be identified. Second, the assets and debts must be classified as either separate, marital or divisible. Third, assets and debts must be valued. The fourth and final step is to fairly distribute the assets between the spouses.
Property is classified as being either separate property, marital property or divisible property. Most property falls into either the separate or marital property classifications.
Separate property is not open to distribution. It consists of assets and debts owned by a spouse prior to marriage which can be identified as such. Inheritances and gifts from third parties are also considered separate property. Also, property acquired after date of separation is separate property so long as it was not purchased with marital funds.
Marital property is subject to distribution. It consists of all assets and debts acquired by the spouses during the marriage (except gifts and inheritances). Gifts made to each other by the spouses are usually considered marital property unless they were specifically identified as separate property by the gifting spouse at the time the gift was made.
Divisible property is a special category. It is property which accrues to the divorcing couple post separation and before the divorce is final. It is property that is acquired after the date of separation and prior to the final distribution of the property. Divisible property usually consists of increases or decreases in marital property value or interest on marital investments or commissions. It also includes increases or decreases in marital debt.
Unequal Distribution of Assets
While marital property is generally divided in equal amounts between the spouses by North Carolina courts, an unequal division is sometimes granted. There is a presumption in North Carolina that an equal distribution is equitable. If a judge finds otherwise, there must be specific findings of fact to support his or her division.
The 12 statutory factors that influence whether or not an unequal distribution is a fairer division between spouses include the amount of property owned separately by each spouse, each spouse’s current income, support responsibilities from previous marriages, contributions made to the marriage by each spouse, contributions of support for the other spouse’s education or career, the age and health of each spouse, pensions or retirement accounts not open to distribution and wasting or substantial preservation of marital assets by one spouse and not the other – and other factors.
Interim Distribution of Property during Separation
A motion for an interim distribution to either party may be made at any time after filing of the initial lawsuit. There is a presumption that the distribution should be made; the burden is on the other party to show good cause why it should not be made. The purpose of the presumption is to avoid one party having control of all the marital assets prior to a final distribution. The amount of the interim award will be taken into account when the judge makes the final distribution of marital property after the divorce.
Do I Need an Attorney for Property Division?
Property division is one of the most complex components of divorce, particularly if your marriage has complicated property issues to settle. You should take steps to make certain you receive everything you deserve in the divorce settlement by contacting a North Carolina family law attorney experienced in matters of equitable distribution.
Greenville NC Property Distribution and
Family Law Attorney Cynthia Mills
Your future will be determined by the legal action you take today! Insure that you take the right path and secure what matters most to you and your family. Let me help you through the uncertainty and emotional stress of your family legal crisis with skill, experience and dedicated representation. Email email@example.com or call me at 252-752-6161.