Divorce Lawyers Helping Clients Understand North Carolina’s Equitable Distribution Laws
It’s natural to feel overwhelmed with everything you must consider throughout the divorce process. There may be concerns about child support, spousal support (also known as alimony or spousal maintenance), child custody, and visitation rights. But you must also understand how equitable distribution works and how the division of assets plays out in a North Carolina divorce or separation.
Some states, like California, are community property states. North Carolina is an equitable distribution state. This impacts how property is divided in a divorce or legal separation. It is crucial that spouses determine what is the difference between separate and marital property in their divorce case.
For those dealing with contentious negotiations for property division, it is highly recommended that you seek the professional legal counsel of an experienced divorce lawyer.
What is North Carolina Equitable Distribution?
Equitable distribution is the legal process in which a family law court identifies and classifies assets acquired by the parties during the course of their marital union or partnership, assesses the value of those assets, and then distributes them between the two parties. North Carolina laws regarding equitable distribution are ever-changing, so it is important to retain professional legal representation for a clear idea of how the equitable distribution process works in your divorce matters.
In an equitable division state such as NC, the court divides property between the spouses in a way that it believes is fair and equitable. It is important to note, however, that that does not mean the property will be divided 50/50 down the middle. There may be certain situations in which one party asks for or requires more property in the division of assets, and the equitable distribution of property may be unequal in this regard.
Those looking to protect their assets from the North Carolina division of property following the dissolution of marriage or the ending of a partnership are encouraged to seek out the legal guidance of experienced equitable distribution attorneys. Our law firm would be proud to assist you in these matters.
What Types of Property Are Recognized Under North Carolina Law?
In North Carolina property division, the court recognizes three different types of property.
Separate property includes any assets owned by either spouse before the party’s marriage. This also includes property acquired during the marriage by one spouse through an inheritance or a gift from a third party. Separate property also includes any assets acquired after the date of separation, provided they were acquired with non-marital funds.
Marital property includes any property currently owned by the spouses that was acquired during the course of their union. The only exception to this rule is if the property was obtained as a gift from a third party or as an inheritance to a single individual. Marital property can also include debts, pensions, and retirement accounts accrued between the date of marriage and the date of the ultimate separation.
Divisible property relates to the increase and decrease in the value of marital property post-separation. Divisible assets include the properties obtained after the date of separation that were acquired nonetheless as a result of marital efforts by either spouse prior to the date of separation. Divisible property may also include passive income generated by marital property if it was received after the date of separation. Post-separation increases in marital debt may also be considered divisible property.
Divisible property and marital property are subject to equitable distribution under North Carolina law. Separate property is not.
What is Considered Marital Property for the Purposes of the Property Division Process?
The classification of property determines whether a family law judge has the power to divide it in divorce proceedings. North Carolina courts have the authority to divide only marital and divisible properties. Marital property is defined as any currently owned real and personal property acquired by either spouse or both spouses over the course of their marriage and before the date of the separation.
These assets will be divided during the equitable distribution process. Common examples of marital property in a North Carolina divorce include motor vehicles, real estate, shared bank accounts, shared income, jewelry, antiques, art, and other valuables.
What is Considered Separate Property?
Property and assets that are not considered marital assets are exempt from property division. These assets are known as separate properties.
Separate property may include any property that you or your spouse owned prior to the beginning of your marriage, assets gained after the separation with post-separation income, items inherited as a beneficiary, and items received as a gift from a third party.
What Types of Marital Assets Are Subject to the Division of Marital Property?
It is important to correctly classify owned property as either marital, separate, or divisible.
Property that could potentially be divided in your divorce case includes:
- Real estate property.
- Land.
- Businesses.
- Marital residence.
- Farms.
- Stocks and stock options.
- Retirement accounts, pensions, IRAs, and 401(K) accounts.
- Intellectual property.
- Motor vehicles.
- Vacation property.
- Trusts and other marital estate planning sources.
- Private airplanes.
- Antiques.
- Furniture.
- Boats.
- Art.
- Jewelry.
- And more.
How is a Fair Market Value of Property Determined?
For the purposes of equitable distribution in North Carolina, the law states that marital property must be valued at the date of separation. Evidence of free separation and post-separation occurrences is considered corroborative evidence of the value of the marital property at the date of the separation of the parties. Divisible property, on the other hand, shall be valued at the date of distribution.
The date of separation values can be difficult to apply to any valuables. In many cases, it is common for the two parties to disagree on the data separation or the value of the assets in question. It is recommended that an accurate appraisal for marital property and divisible property is obtained.
What Happens if the Two Spouses Cannot Agree on Dividing Marital Property?
If you cannot amicably resolve how to divide marital property in a divorce, the family law court determines property division.
A family law judge will take many factors into account to determine what they believe is a fair and just way to divide assets between both spouses. Factors that judges may consider include the income, debt, age, health, pension, marital fault, property, and marital support obligations of the parties.
What Factors Affect Equitable Distribution in NC?
In some cases, one party receives more than 50% of the assets in a divorce case. This is considered an unequal division of property. The court must consider several factors when determining whether to award unequal shares to either of the parties involved in the separation.
The factors that the courts use to render their decisions include:
- The income and liabilities of either party at the time of the property division.
- One of the spouse’s support obligations from a previous marriage.
- The needs of the children involved.
- Liquidity of marital property.
- Tax consequences.
- Any attempts made by either individual to protect or neglect marital property and discovery.
Contact Us to Schedule a Consultation with an Experienced Attorney Today
Kreider Attorneys at Law represents a wide range of legal matters, including the complexities of equitable distribution during the divorce process. If you have any questions or concerns about equal distribution, unequal distribution, and general property division, please contact our law firm to speak with our highly skilled legal team.
Led by former District Court judge Jonathan G. Kreider, our Greensboro, North Carolina, law firm is uniquely qualified to handle all sorts of divorce cases and equitable distribution matters. To learn more, please contact our Greensboro law offices to schedule your initial consultation today.
You may call us at 336-770-2017.