WHAT HAPPENS TO MY STUFF?
What is it?
Property Division means the division of all “marital property,” assets, and debts acquired by a couple during their marriage. You will hear “Equitable Distribution.” This legal term means the same thing as Property Division.
Who determines what is “marital property”?
The Court determines “marital property.” It includes all the property that was acquired by the parties from the date of marriage until the date of separation. It can also include property owned before marriage under very specific circumstances.
How does the Court distribute “marital property”?
The Court conducts a 3-step analysis to determine distribution of all marital property.
- Identification and Classification
The Court first identifies each asset and debt the couple has between them. It then determines whether one or both of the parties has any claim of ownership to each item. Next the Court establishes whether each item belongs to one party or to both. This classification requires support by evidence and substantial facts.
- “Marital property” includes all real and personal property acquired by either spouse from the date of marriage and before the date of separation.
- “Separate property” includes all real and personal property acquired before the marriage date or acquired during the marriage by way of a bequest, gift, or similar accumulation. Other examples of separate property include professional and business licenses which would terminate if transferred, any increase in value to property determined to be separate, or income obtained from such property.
- “Divisible property” is the increase, or decrease, in the value of marital property from the date of separation until the date the property is distributed.
Classification of property can be very nuanced. The Court considers details such as when and how property is acquired when determining its classification. In some instances, items may be classified as both marital and separate. This earns them a dual classification.
After the Court completes its identification and classification of each item, the Court affixes a net value to each piece of property. It bases this amount on the market value of these items at the date of separation, minus anything such as taxes.
Once the Court completes the first two steps in the process, it proceeds to distribute all property “equitably” based on the property’s value and classification. This distribution does not include alimony or child support. The Court will follow an equal distribution of all marital property as outlined in the Equitable Distribution Act, unless it determines that such a distribution would, in fact, be inequitable.
Some reasons for an unequal division of marital property include but are not limited to: length of marriage; support obligations for a previous marriage; necessity of a custodial parent to remain in the marital residence for the benefit of the children; one party’s contributions to the other’s education or career; economic desirability of distributing a business interest to only one party; any acts by one party to maintain or devalue marital property following the separation date; or any other factor deemed just and proper by the Court. Evidence for any of these exceptions must be introduced to the Court at trial. It may only consider exceptions to reasons for which proper evidence is presented.
Who can ask for Equitable Distribution?
A claim for Equitable Distribution may be filed at any point after separation by either party or both. The action may be filed separately or together with other claims such as alimony, absolute divorce, etc. The Court’s calendar will control how long it takes to hear your claim for Equitable Distribution.
In case of a concern for the disappearance, waste, or conversion of property, temporary orders or injunctive relief may be obtained with special provisions. You may also ask for a partial distribution of assets prior to the final trial on Equitable Distribution.
Do I have to go to Court?
No. In fact, most cases settle outside Court. As long as the parties agree on who gets what property then you do not have to go to trial. Mediation can assist greatly with settlement and save money over the lengthy and stressful trial process.
Can I file for Equitable Distribution?
The two big exceptions are:
- Your request for Equitable Distribution must be made prior to completion of an Absolute Divorce or any claims on marital property may be lost forever; or
- Some agreements made prior/subsequent to a marital relationship eliminate the option for filing for Equitable Distribution. These may include premarital agreements, postnuptial agreements, or property settlements agreed to at the time of separation. If you agreed to one of these documents then you should consult with a lawyer to discuss your options.
Federal laws may preempt North Carolina laws in these two cases:
- Social Security benefits; or
- Retirement pay previously waived by a service member in favor of veteran’s disability benefits
What if my spouse dies?
The date of a spouse’s death makes a big difference in the continuation of a pending Equitable Distribution case. If the spouse passes away before an Absolute Divorce is completed but while the Equitable Distribution case is still pending, this will bar Equitable Distribution. If the death occurs after the divorce is granted but while an Equitable Distribution action is pending, it will not be barred. At this point, any heirs of the deceased whose interests would be affected will be joined in the pending action.
Can I ask for Attorney’s fees?
The simple answer is, no. One exception occurs when the owner of “separate property” sues the other to regain possession of the property.
Every aspect of divorce involves so much legalese and a list of seemingly endless questions. We can help you wade through the waters of divorce proceedings from start to finish and everywhere in between. Call today to schedule a consultation, or click here to schedule a consultation online!