Property Settlement + Equitable Distribution

One of the most legally complex issues for divorcing couples is how their marital assets will be divided. It is always preferable to enter into a property settlement agreement because the parties will control how the assets and debts are divided. However, a couple should be cautioned against preparing their own Separation Agreement as forms may be outdated, not be appropriate to the jurisdiction or be incomplete.  The forms can also provide for more than the parties need.  If an agreement is reached, an experienced divorce and family law attorney at Weaver, Bennett & Bland should draft the final document for execution.

If spouses cannot agree, a lawsuit may be necessary to have the Court identify, classify, value, and/or distribute their marital property.  Identification is simply listing the items of property and debts existing as of the date of the parties’ separation.  Classification refers to indicating whether the item is separate property, marital property or mixed.

The knowledgeable divorce and family law attorneys at Weaver, Bennett & Bland, P.A. are experienced in dealing with all matters in equitable distribution cases.  Our attorneys have participated in negative estate actions (where the value of the estate is in the red due to massive debts) as well as marital estates worth millions of dollars. Contact us today to schedule an appointment for legal counsel.

What is Marital Property?

NCGS 50-20 defines marital property as:

All real and personal property acquired by either spouse or both spouses during the course of the marriage and before the date of the separation of the parties, and presently owned, except property determined to be separate property or divisible property in accordance with subdivision (2) or (4) of this subsection. Marital property includes all vested and non-vested pension, retirement, and other deferred compensation rights, and vested and non-vested military pensions eligible under the federal Uniformed Services Former Spouses’ Protection Act. It is presumed that all property acquired after the date of marriage and before the date of separation is marital property except property which is separate property under subdivision (2) of this subsection. It is presumed that all real property creating a tenancy by the entirety acquired after the date of marriage and before the date of separation is marital property. Either presumption may be rebutted by the greater weight of the evidence.

Generally speaking, “marital property” is defined as all assets and debts that you and your spouse, either independently or together, acquired after the date of marriage and prior to the date of separation. “Separate property” is defined as assets or debts that one spouse acquired prior to the marriage or during the course of the marriage under very specific circumstances. Marital property is subject to Equitable Distribution; separate property is not.

Valuing the property and debts is simply a function of obtaining the appropriate documents or other information available to value the items as of date of separation.  Finally, distributing is assigning the property or debt to one or the other spouse.

How is Marital Property Divided in Charlotte?

In North Carolina, the division of marital property following a separation of the spouses is referred to as “Equitable Distribution.”

NC law instructs the Court to divide marital property equally unless such division is not equitable, in which case, the Court may consider the following factors:

  • Each spouse’s income, property and liabilities;
  • Any support obligation from a prior marriage;
  • The marriage duration;
  • Each spouse’s age and physical and mental health;
  • The need of a parent with custody of a child to occupy a jointly owned home;
  • A spouse’s contributions as a wage earner or homemaker;
  • The tax consequences to each spouse;
  • Any acts of either spouse to maintain or waste marital property after the date of separation;
  • Any separate property owned by either spouse;
  • The difficulty of evaluating business interests; and
  • Any direct contribution to an increase in value of a spouse’s separate property.

Negotiating Equitable Distribution

The long list of factors demonstrates that Equitable Distribution isn’t always as simple as giving each spouse fifty percent (50%) of the assets and/or debts.  In many cases, it may be more “equitable” for one spouse to be distributed more than fifty (50%) of either the assets or debts. It’s almost always within a divorcing couple’s best interest to have control over the division of their marital property and come to an agreement.  Otherwise, a judge will determine distribution based on the testimony in court.

Unfortunately, some spouses hide income and assets and refuse to negotiate in good faith.  In that event a lawsuit for equitable distribution is necessary to allow an experienced divorce and family lawyer to seek discovery of documents leading to the whereabouts and value of the couples’ entire marital estate.

Once a lawsuit is filed, one may ask for an interim distribution of property which can alleviate a financial hardship or allow the use of a property such as a house or motor vehicle.  The interim distribution is taken into account in the final resolution.  Likewise, a party may seek an injunction prohibiting the other party from secreting, transferring, selling or otherwise disposing of an asset or assets to avoid dissipation of the marital estate.