Equitable Distribution FAQs
For individuals getting a divorce, equitable distribution can be one of the most complicated causes of action. In North Carolina, at least one of the spouses must file for equitable distribution with the court before the divorce is final in order to protect their right to a court-ordered distribution of any and all marital property.
In North Carolina, equitable distribution does not mean that a couple’s assets will be divided exactly in half. In fact, North Carolina courts have stated that the term equitable means fair rather than equal. Either spouse can argue to the court that they are entitled to more than half of the property and that an unequal distribution would be the fair result based upon various statutory factors.
As a result, it is very important that an individual who wants to protect their right to a fair marital property division consults with an experienced attorney. In these cases, there are numerous variables and nuances regarding the classifications of assets and the value of these assets. Furthermore, it may take years to rebuild your property and assets. Do not let your divorce ruin your livelihood, contact Arnold & Smith, PLLC today to have our experienced attorneys on your side.Frequently Asked Questions
What exactly is equitable distribution?
In North Carolina, equitable distribution is the process of dividing assets and debts that were acquired during marriage. The theory behind equitable distribution is that marriage is a shared partnership and therefore each spouse has an equal right to the marital property.
If I file for divorce, does that affect equitable distribution?
It does not matter which spouse files for divorce. Additionally, marital fault or any other type of misconduct usually plays no role in the division of assets, with the exception of financial marital misconduct.
What is the difference between marital, separate, and divisible property?
Marital property is all real and personal property that both parties acquired during the marriage. Examples of marital property include retirement accounts and pensions, as well as debts. Marital property is subject to equitable distribution. Separate property is any property that was acquired by either spouse before the marriage began or that was acquired as a gift or inheritance to one spouse during the marriage. Any passive increase in the value of separate property is also considered separate for the purpose of equitable distribution.
Divisible property is particularly complicated because it involves the modification of a marital asset in order for it to be divided.. Any increase or decrease in the value of marital property after the date of separation is treated as divisible property. Any property that was acquired post-separation due to the acts of either spouse during the marriage is also divisible. Any interest or income received from marital property after separation is divisible. Finally, any change in any marital debt after date of separation is also considered divisible property.
Will a judge or jury divide property?
In almost every equitable distribution case, the parties will be required to attend a mediation to see if they can reach an agreement on their own. If the spouses cannot agree, then litigation will be their only option. In these cases, a judge will always determine how the property will be divided and not a jury.
How will a judge determine exactly how to divide the property?
In North Carolina, the strong presumption is that an equal or even distribution to both spouses is equitable. However, in some cases, a judge may decide to divide the marital property another way in order to be equitable. In these cases, detailed findings of fact are necessary and there are numerous factors that a judge must take into account.
What is an interim distribution?
An interim distribution occurs when marital assets are distributed by a judge or by agreement of the parties before equitable distribution is complete. This type of distribution is helpful, because it can aid in classifying specific property for both parties ahead of time. When it comes time for final equitable distribution, any interim distributions are taken into account.