Our family law and divorce attorney at the Law Office of James Tyler Brooks can assist you with your property division and equitable distribution issues that arise during your separation and subsequent divorce proceedings. Property division is but one part of the divorce process, dividing property can be very complicated. The following is merely an overview of the legal parameters of property division in North Carolina and is not a substitute for speaking with a divorce lawyer.
When contemplating divorce, you should speak with a divorce attorney to discuss the options for dividing property between you and your spouse. In general, there are two ways that property can be divided pursuant to divorce:
- by separation agreement
- by court-ordered “equitable distribution”
If you and your spouse are in agreement as to how you should divide your property, you can avoid court-ordered equitable distribution with a separation agreement. As with other divorce issues, we believe it is preferable and in each party’s best interest to negotiate and reach an agreement outside of court whenever possible—clients have faster resolution, and out-of-court settlement is more cost-effective in terms of legal billing.
North Carolina’s Equitable Distribution Act reflects the General Assembly’s view that marriage is a partnership to which both spouses make contributions. The law presumes that property obtained after marriage and before separation is marital property (property of the marriage itself, as opposed to that of an individual) and that it must be divided equally unless the court determines, through diligent consideration of other factors, that an equal division of property would be inequitable. In order to make an unequal division of property, the court must make specific findings based on the factors set forth in North Carolina General Statute § 50-20(c).
The role of North Carolina courts in an equitable distribution proceeding is multi-fold:
- classify all of the property and debt identified by the parties as marital, separate, divisible or mixed
- determine the net value of the property and the amount owed on debts as of the date of separation
- equitably divide the marital assets
Prior to separation, neither spouse has an individual, legal right to sue the other for a division of property through equitable distribution. Upon separation, however, either spouse has the legal right to file for an equitable distribution of marital and divisible property. Note: Except for certain circumstances, the right of either spouse to sue for equitable distribution ceases if not filed before entry of a decree of absolute divorce.