How Are Assets Divided in a Divorce in NC?
In North Carolina divorce cases, the courts follow a principle known as “equitable distribution.” Under this theory, spouses must divide marital property fairly during divorce proceedings. But it’s important to recognize that “equitable” is not necessarily the same as an equal 50/50 split.
Are you considering filing for divorce in North Carolina? Or were you recently served with divorce papers? If so, you might be feeling uncertain or even intimidated by the complexity and potential ramifications of divorce. The financial stakes can feel exceptionally high when it comes to the division of assets.
Understanding what to expect from property division can empower you to retake control. When you know what assets you can count on keeping, what you’ll have to split with your ex, and whether you’ll be responsible for any marital debts, you can begin planning for the future. You can get a sense of where you could live, whether children may need to change schools, and how to start shaping your financial future.
In the equitable distribution of marital assets, the goal is to allocate property according to what is fair for both spouses. When the court determines what is equitable, it considers multiple factors in how each spouse contributed to marital assets, including performing household tasks and caring for dependents. The court will also consider the ways each spouse contributed to marital debts and the relative need of each spouse, both now and in the future.
Ultimately, the court must order a division of assets that is fair to both sides, whether or not that involves dividing assets evenly. To learn more about property division in a North Carolina divorce, contact a family law attorney at
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Which Types of Property Are Divisible in a North Carolina Divorce?
Before the court decides how to divide a couple’s assets, it must categorize them to determine which items are eligible for division. The three main types of property in a divorce are:
- Separate property – Separate property is any property you owned before marriage or will gain after you are formally separated from your spouse. Some property can still be considered separate property even if you obtained it during the marriage, but only if you got it by exchanging another separate asset of yours or receiving an asset intended for you alone, such as an inheritance or gift. Importantly, separate property includes both assets and debts.
- Marital property – Marital property includes any assets or debts either spouse earns or accumulates during the marriage, up until their separation date. It includes real property as well as wages, pensions, and other benefits. Gifts given from one spouse to another during the marriage are typically considered marital property unless the donor explicitly states that the gift is separate property at conveyance.
- Divisible property – Divisible property is a narrow category that includes any changes in value that affect any marital property between the date of separation and when the property is formally divided. Examples of divisible property include money or property value that either spouse earned during the marriage but did not gain until after separation, such as a bonus or commission check.
In a North Carolina divorce, the court can order the division of marital property and divisible property, but not separate property. If you have separate property that you wish to keep, a knowledgeable North Carolina family law attorney can help you prove that you have the right to hold on to it after your divorce is finalized.
What Factors Do Divorce Courts Consider in Property Division?
As a starting point, divorce courts presume that an even division of marital debts and assets is fair. However, the courts also recognize that many factors can render an equal split unfair to one party. To determine whether an uneven distribution of assets is just, the courts may consider factors such as:
- The length of the marriage
- The relative health and age of each spouse
- The income, property, and assets of each spouse
- The standard of living both spouses are accustomed to
- The relative working capacity and earning potential of each spouse
- The debts and liabilities of each spouse, including child support or spousal support obligations from prior relationships
- The relative needs of each spouse, including the greater need of custodial parents of dependent children
- Any expected retirement benefits for either spouse
- Any efforts or sacrifices either spouse made to acquire or increase the value of the marital property, including real property and business ownership stakes
- Any contributions either spouse made to support the other spouse in advancing their education, career opportunities, or earning potential
- Any actions either spouse took that resulted in the loss or waste of marital assets
- The tax implications of transferring funds between retirement accounts or selling marital assets to third parties
Keep in mind that contributions as a homemaker or primary caregiver for children have a monetary value. Additionally, if you have primary custody of any children you have in common with your spouse, you are more likely to maintain the right to remain in the marital home.
What About Creating a Marital Settlement Agreement?
If you would prefer to reach a private arrangement with your ex instead of leaving everything up to the court, you may want to consider creating a marital settlement agreement. Experienced divorce attorneys can help each spouse negotiate an agreement that suits their needs and desires.
If you can reach a favorable agreement independently or through mediation, you can simply draft a formal document outlining the agreement and submit it to a judge for approval. That way, everyone can avoid the stress and hassle of going to court.
Does Marital Misconduct Affect Property Division in a Divorce?
Generally speaking, no. Marital misconduct such as having an affair does not usually impact the way property is divided in a North Carolina divorce.
However, marital misconduct could play a role in determining alimony. If you had an affair during the marriage, you are likely ineligible for alimony. But if your spouse had an affair, you may be able to demand alimony from them unless you were also unfaithful.
Contact a North Carolina Divorce Attorney Today
There are many complex issues regarding property division in North Carolina divorce. That’s why it’s essential to hire a knowledgeable divorce attorney to provide support, counsel, and fight for your best interests.
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