Written by Bill Hunter, Hunter & Hein, Attorneys at Law, PLLC, updated 09/20/2017
The information below related to the division of property is drafted by one of our divorce lawyers located in Charlotte, NC. This information is not a complete explanation of the law and is not meant to provide legal advice. It is important to consult an attorney in your local jurisdiction when divorcing. If you are located in Mecklenburg or Cabarrus counties and are interested in learning more and/or scheduling an initial consultation related to your separation and divorce, call us today at 704-412-1442 or complete the contact form on the right side of the page below and one or our divorce attorneys will contact you shortly.
If parties are in agreement on how to divide their property upon separation and divorce, the terms of the division may be included as part of a separation agreement, which creates a legally binding document between the parties. Separation agreements often involve negotiation, and it is important to fully understand your legal rights and how the law operates to ensure that you are not leaving money on the table when it comes to splitting assets and debts. In addition to resolving the division of assets and debts, a separation agreement may also be used to resolve any other outstanding issues between the parties, including alimony, child custody, and child support. For more, read our blog which one of our divorce lawyers answers 4 common questions about separation agreements in North Carolina.
If spouses are not able to reach agreement in regards to dividing their property and debts, court intervention through the process of filing for equitable distribution (the process a court follows when dividing assets) may be necessary.
Need help with a divorce related matter in North Carolina? Our Charlotte divorce lawyers are experienced and able to help with your matters located in Mecklenburg or Cabarrus counties. Contact us today at 704-412-1442. We can help.
As with most legal questions, the answer here is, “It Depends.” This can become a bit of a complex analysis, but the short of it requires answering two questions: (1) when and how was the asset purchased or accrued , and (2) was the asset commingled or otherwise potentially converted into a marital asset?
An asset that is acquired or accrued either prior to marriage, or during the marriage by way of gift or inheritance, is typically going to be considered the separate property of the party who acquired or accrued the property. However, such property may be inadvertently commingled, converted, or gifted in a number of different ways during marriage, which could change parts or all of the property from being viewed as separate to being viewed as marital.
Alternatively, assets purchased or accrued during the course of the marriage, regardless of titling, will typically be assumed to be marital property if purchased by using marital funds (i.e, the income of either party or assets earned during the marriage).
In any property division case, these issues concerning timing, comingling, conversion, source of funds, etc. can lead to much confusion and argument and may require artful negotiation or litigation to resolve.
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In North Carolina, courts consider an equal split (50/50) of all marital and divisible property to be equitable, or fair, absent evidence to the contrary. But the analysis isn’t quite as simple as splitting all assets right down the middle. Prior to dividing assets, it is important to classify the assets as marital, divisible, or separate property. Anything classified as separate property will not be divided between the parties and will typically be distributed 100% to the spouse entitled to the separate property. Separate property includes items such as assets owned by either party prior to marriage and otherwise not converted to marital property during the marriage, inheritances, and gifts received by one spouse during the marriage.
There are circumstances that may warrant an unequal distribution in the favor of one party (i.e., a split of 60/40, 70/30, etc.), so one spouse may actually get MORE than half of everything. See the next question for more.
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YES. North Carolina General Statute 50-20(c) lists a number of factors that a court must consider when deciding on whether an unequal division of property (something other than 50/50) is warranted. The following are just a few of those factors: the duration of the marriage; the age and health of the parties; the expectation of non-marital retirement benefits of each party; acts of either party to waste, devalue, or convert marital or divisible property after separation; and any other factor the court finds just and proper.
The burden is upon the party moving for an unequal distribution to prove that the unequal distribution is fair.
Deciding how to handle the marital residence when separating is often one of the more difficult aspects of property division and equitable distribution, as there is often an emotional attachment for one or both of the parties. The first step in the process usually involves the parties deciding whether or not they wish to sell or keep the house. If the spouses cannot mutually agree to sell the house, the parties must decide who is staying in the home and who is leaving. Finally, the spouses must decide how to handle the financial side of the equation, which may include a number of items such as a buyout, refinance, indemnification, and/or a transfer of title. Read our blog on dividing the marital home during divorce for more.
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