Can I Modify My Equitable Distribution Order?
Most divorce filers are relieved, if not thrilled, when the papers officially announcing the legal end of their marriage are finalized. Divorce can be a long and arduous process, and with finality comes closure and new beginnings. Unfortunately, all too often there are individuals who are not happy with what the trial court ordered in terms of equitable distribution, or the division of assets, property and debt in a divorce action. We see many clients who come to us post-divorce wanting to modify their equitable distribution order after either representing themselves pro se before the trial court judge, or after being represented by a different law firm or solo practitioner.
Unfortunately for these individuals, the courts heavily prefer finality on issues of property division once a divorce is finalized. This issue underlines how critical it is to retain a strong family law attorney the first time around in court.Equitable Distribution
North Carolina follows the equitable distribution model when it comes to the division of assets, property and debt in a divorce action. This contrasts with the community property model that some states like California use to simply divide property 50-50 in the event of divorce. Under equitable distribution, the North Carolina courts are directed to examine a multi-factor list to determine what division would be fair, or equitable. These factors include issues such as the duration of the marriage, the mental and physical health of both parties, the need of a spousal parent with custody of a child from the marriage to live in the marital home, and any indirect contributions one spouse made to allow the other spouse to pursue further education or their career. For example, if one spouse became a stay-at-home parent and put his or her career on the sidelines in order to allow the other spouse to go back to school or take a promotion, the court will not necessarily hold the stay-at-home spouse’s lack of income during those years against them in deciding how to divide the couple’s property upon divorce.How Final is “Final?”
The North Carolina trial courts will not modify a final order for equitable distribution of property once it is entered barring extraordinary circumstances or appeal. This is one of the many reasons it is imperative to have an experienced divorce attorney from the start of your case; trying to save pennies initially can permanently damage your property rights if your attorney does not fight for a fair division or allocation the first time around.
It is possible to appeal a trial judge’s order for equitable distribution to the Court of Appeals. However, in examining the appeal, the appellate court will be largely constrained to two things:
- The trial judge’s order. This is typically drafted by the parties’ attorneys after mediation or trial. Language matters. Although the amount of time it can take to reach a settlement agreement and for your attorney to draft and re-draft the resulting equitable distribution order may seem superfluous, there is a reason for this. A skilled family law attorney owes it to you, the client, to be deliberate and meticulous in reaching a settlement agreement crafted to your individualized needs and drafting that into certain orders for the judge to then approve.
- The trial judge’s specific findings of fact entered into the record. When the trial judge enters on an equitable distribution order the parties present to the Court, he or she will make “findings of fact” on the record in explaining why and how the Court reached that decision. On appeal, the appellate court cannot examine new facts not discussed at the trial level and will be limited in its review of the trial judge’s ruling by these trial-level findings of fact. For example, if your family law attorney did not fight for the trial judge to make a finding of fact about why your marital and divisible assets were divided the way that they were, this can curtail the Court of Appeal’s power to reexamine the issue on appeal. If the trial judge’s findings of fact are inadequate, this can mean the case will be remanded, or sent back to the trial court, for new findings of fact. As you may know by now, it takes considerable time, money and stress on the parties involved for a case to work its way through even just the trial court. Bringing an appeal only to have it remanded back to the trial court will considerably lengthen the amount of time it takes to get another ruling.
Whether you are currently facing divorce or have a post-judgment equitable distribution order you want to appeal, you will need an experienced family law attorney to fight for your property rights before the Court. If you live in the Charlotte, Lake Norman area please contact Arnold & Smith, PLLC for a consultation with one of our experienced family law attorneys today. Our dedicated attorneys handle a wide range of family law issues for our clients, from child support, alimony, initial separation and divorce, to appeals of trial court orders.