Equitable Distribution and Temporary Restraining Orders

North Carolina law allows for a claim for equitable distribution to be filed with the court and processed as soon as a Waxhaw married couple begins to live separate and apart from one another.

In Waxhaw, North Carolina, equitable distribution is governed by statute - in other words, written into law - in Chapter 50 of the statutes. Many who work in the legal area of family law know equitable distribution simply as “E.D.” Equitable distribution is the process by which a couple that has separated splits up their net marital estate. This equitable distribution includes assets and debts acquired or accrued during the couple’s marriage.

Of note, a Waxhaw equitable distribution claim does not necessarily need to be brought with, or as part of, a divorce proceeding. Rather, an equitable distribution claim can be filed as a civil action that is separate and apart from the divorce claim. While it is not required that an equitable distribution claim be brought with a divorce claim, it may be brought together with any other action that is brought pursuant to a North Carolina divorce action. Moreover, a Waxhaw equitable distribution claim can also be raised by a motion made by either party if a lawsuit - referred to as litigation - has already been started.

Under North Carolina’s equitable distribution process, the first step is to identify and classify a couple’s property. There are two types of property when it comes to divorce and equitable distribution - marital property and separate property. Marital property includes assets and liabilities that belong to both the husband and the wife. This property was obtained or accrued during the marital relationship and is subject to equitable distribution. Property that was obtained prior to the marriage, and often titled in the individual name of only one spouse, is not subject to equitable distribution. Of note, equitable distribution does not necessarily mean a 50/50 split of property but, rather, a distribution that is fair among the couple.

It can be complicated to distinguish between marital and separate property in a North Carolina divorce proceeding, particularly when property is purchased shortly before the marriage and both spouses used their funds to make payments on the property and eventually paid it off during the marriage. An experienced Waxhaw, North Carolina family law attorney can assist parties analyze whether the property in question is marital or separate, help negotiation and settle differences of opinion between the spouses regarding property, and assist the spouses who need to litigate their claims in a North Carolina court of law.

During or before a contested Waxhaw equitable distribution claim, one of the spouses may worry that his or her spouse is planning to deplete, sell, discard, or take other unapproved action that couple directly affect the value of marital property prior to distribution. This referred to as martial waste and is a major concern. A spouse who suspects the other spouse is engaging in marital waste may make a motion to the court and request the other spouse be stopped from depleting, selling, discarding, or taking other action that can affect the value of the property until an agreement is made between the parties or until a North Carolina court makes a final determination on equitable distribution.

Sometimes, a restraining order may be entered ex parte - or without the other spouse being present or even being aware of the issue. Because this is not common, certain factors must be met including the concerned spouse demonstrating that an immediate loss or injury to property is imminent and that notice to the other spouse of the hearing on the merits of the restraining order is not practicable under the specific scenario. In several matters during which a restraining order is granted, a North Carolina court will mandate that the party seeking the restraining order pay a bond protecting the other party against any potential losses that could be suffered due to the restraining order. Typically, those who are seeking a restraining order to prevent marital waste to occur - that is, destruction of marital property - are not ordered to pay a bond. If a court that is convinced to enter a restraining order later learns that the moving party sought the order wrongfully, a North Carolina court may award damages to the spouse who wrongfully had a restraining order against him or her.

Equitable distribution cases can become complicated, and sometimes restraining orders become part of the process. The attorneys at Arnold & Smith, PLLC have experience in all types of family law matters and can help you with equitable distribution, restraining orders, and other matters in Waxhaw and the rest of North Carolina.