Distribution of property is one of the first practical issues that a divorcing couple must face. Who gets the house? How to divide up the couple's marital assets? What about pension and retirement plans? Debt? A claim for fair distribution of marital assets and debt can be achieved through either a claim for interim distribution and/or equitable distribution. In certain cases involving real estate or land, a separate proceeding to partition the property must be brought.
Distribution of assets in a divorce case can be an extremely complicated process, and procedurally some of these claims must be filed before certain points along the divorce timeline or a spouse will lose the right to assert them. Without a pending claim for equitable distribution, a divorced spouse will only have the right to the marital title to which they had legal title. This is one of the many reasons it is important to enlist an experienced family law attorney if you are facing divorce. Arnold & Smith, PLLC is an aggressive civil and criminal litigation firm in Charlotte, North Carolina. Our dedicated family law and divorce attorneys stand at the ready to give your case the individualized, assertive representation it deserves.Interim Distribution
Divorce in North Carolina requires a couple to have been living separately for at least one year. However, in many separation and divorce cases, one of the parties will be at a distinct financial disadvantage over the other. If one of the spouses has their name on most of the property deeds or leases or has sole access to the couple's liquid accounts or the primary income paycheck, this can easily throw the balance in that person's favor. If the party with financial power is withholding, this can make it financially impossible for the couple to live separately for the requisite amount of time in order to qualify for divorce. Interim distribution payments serve to make it possible for a couple to separate or stay separated in the event that doing so would cause one of the parties financial hardship or if they have nowhere else to live. The distribution is "interim" because it is before the judge enters a final judgment on the couple's equitable distribution.Equitable Distribution
Before making a final judgement on a divorcing or divorced couple's equitable distribution, the judge will examine each person's contributions to, and sacrifices for, the marriage in order to determine what would be a fair division. Property a party obtained before their marriage is generally considered separate and is not subject to equitable distribution, but distinguishing between separate and marital property can become a muddled inquiry when the couple used separate assets to pay off marital debt, or vice versa. Income, assets and property acquired from the date of marriage until the date of separation is presumed to be marital, and therefore subject to equitable distribution.
This is not the only aspect that makes equitable distribution a burdensome claim. A claim for equitable distribution does not have to be filed as a separate claim from a divorce filing, although it can be. However, procedure in North Carolina dictates that in order to preserve a right to file for equitable distribution, you must at least have a claim for equitable distribution pending in the courts before your divorce is finalized by the judge. Otherwise, the issue is not preserved and courts will not hear the matter. This is important because equitable distribution looks to what a fair division of assets would be (rather than simply dividing all property down the middle, as some states do). In many cases a spouse will lose out on the right to property and assets that are rightfully theirs in a divorce simply because they do not properly file for equitable distribution in time.Settlement Agreements
In many cases, couples prefer to reach an agreement with each other out of court instead of litigating some of the most personal details of their lives out in court. In these cases, equitable distribution can be addressed in a settlement agreement. This can save precious financial and emotional resources and help a divorce case resolve much more quickly.
However, in other cases a divorcing couple simply cannot reach an amicable agreement that is fair to both parties. In these cases, the issue must be taken to court and argued before the judge. It is important to have a local family law attorney experienced in both settlement negotiation as well as aggressive litigation so that they are prepared for whichever direction your case goes. The family law and divorce attorneys at Arnold & Smith, PLLC have years of experience in dealing with property distribution both in and out of courtrooms in Charlotte, Mooresville, Monroe and the surrounding region.
For more information on distribution of assets in divorce cases, please see the following:
- Equitable Distribution and Temporary Restraining Orders
- Interim Distribution
- Property Division and Unequal Distribution
If you are facing divorce, or want to discuss interim distribution so that you and your spouse can separate, it is important to speak with an experienced family law attorney to ensure that your rights are protected and the proper procedure is followed. Arnold & Smith, PLLC is a civil and criminal litigation firm with offices in Charlotte, Mooresville and Monroe North Carolina. Our attorneys are experienced in a wide range of family law issues including divorce, separation, distribution and child custody. Contact us today for a consultation.