The court will divide the property owned by you and your spouse, if you have not voluntarily agreed to a property division earlier. In North Carolina this process is described as “Equitable Distribution of Marital Assets”. There are two types of property that must be considered. “Separate property” includes all property owned by either spouse before the marriage, property acquired during the marriage by one spouse by inheritance or gift from a third party and property acquired after the date of separation with post-separation earnings. A gift from one spouse to the other during the marriage is marital property unless the donor states at the time of the conveyance that it is intended to be separate property. Separate property also includes income from some separate property and property obtained in exchange for separate property. “Marital property” includes property presently owned that was acquired during the marriage except property determined to be “separate property.” “Marital property” includes all vested pension and retirement benefits. As you might imagine, the law of equitable distribution is extremely complex and this brief description is a gross over-simplification.
Unless you and your spouse agree to the division of your property, equitable distribution can take place only after all procedures have been followed. Marital property will be divided between the parties by the court. While there is no precise formula for dividing the property, there is a strong tendency in North Carolina to divide the property or its equivalent value equally.
There are thirteen (13) statutory factors the court must consider in deciding whether an equal division is appropriate in your case. These factors are:
- Income, property, and debts of a party;
- Support obligations from prior marriages;
- Length of marriage and age and health of each party;
- Needs of custodial spouse to own or to possess the marital home place and household effects;
- Expectation of retirement benefits which are separate property;
- Efforts made by each spouse to acquire property;
- Contributions of one spouse to the education of the other;
- Direct contributions that increase the value of separate property;
- Liquid or non-liquid nature of property;
- Difficulty in valuing interest in a business;
- Tax consequences;
- Actions taken by either party to preserve or waste marital assets; and
- Other factors.
If you have any assets (bank accounts, cash, etc.) that your other spouse might take, remove or otherwise conceal, you should advise us immediately so that protective actions can be taken. Also, a court has the power to enter an injunction to prevent the removal or disappearance of any assets.
Marital misconduct such as adultery is not considered in determining a property division. If you and your spouse can agree, and if your agreement is reasonable, it will be approved by the court. If you cannot agree, the court will divide the property.