According to N.C.G.S. 50-20(c), in the event that one party requests that there be an unequal division of property (i.e., where one party feels that he or she should get more than 50% of the property), a court must consider the following factors when deciding on whether or not to award an unequal share to the parties involved:
1. The income, property, and liabilities of each party at the time the division of property is to become effective.
2. Any obligation for support arising out of a prior marriage.
3. The duration of the marriage and the age and physical and mental health of both parties.
4. The need of a parent with custody of a child or children of the marriage to occupy or own the marital residence and to use or own its household effects.
5. The expectation of pension, retirement, or other deferred compensation rights that are not marital property.
6. Any equitable claim to, interest in, or direct or indirect contribution made to the acquisition of such marital property by the party not having title, including joint efforts or expenditures and contributions and services, or lack thereof, as a spouse, parent, wage earner or homemaker.
7. Any direct or indirect contribution made by one spouse to help educate or develop the career potential of the other spouse.
8. Any direct contribution to an increase in value of separate property which occurs during the course of the marriage.
9. The liquid or non-liquid character of all marital property and divisible property.
10. The difficulty of evaluating any component asset or any interest in a business, corporation or profession, and the economic desirability of retaining such asset or interest, intact and free from any claim or interference by the other party.
11. The tax consequences to each party, including those federal and State tax consequences that would have been incurred if the marital and divisible property had been sold or liquidated on the date of valuation. The trial court may, however, in its discretion, consider whether or when such tax consequences are reasonably likely to occur in determining the equitable value deemed appropriate for this factor.
11a. Acts of either party to maintain, preserve, develop, or expand; or to waste, neglect, devalue or convert the marital property or divisible property, or both, during the period after separation of the parties and before the time of distribution.
11b. In the event of the death of either party prior to the entry of any order for the distribution of property made pursuant to this subsection:
a. Property passing to the surviving spouse by will or through intestacy due to the death of a spouse.
b. Property held as tenants by the entirety or as joint tenants with rights of survivorship passing to the surviving spouse due to the death of a spouse.
c. Property passing to the surviving spouse from life insurance, individual retirement accounts, pension or profit-sharing plans, any private or governmental retirement plan or annuity of which the decedent controlled the designation of beneficiary (excluding any benefits under the federal social security system), or any other retirement accounts or contracts, due to the death of a spouse.
d. The surviving spouse's right to claim an "elective share" pursuant to G.S. 30-3.1 through G.S. 30-33, unless otherwise waived.
12. Any other factor which the court finds to be just and proper.
Upon the dissolution of a marriage, and at the request by motion of either party involved, North Carolina courts use the process of equitable distribution to distribute property between divorcing spouses. Equitable distribution involves the valuation, classification, division, and distribution of property between former spouses. Depending on the types of assets involved, the valuation of property may be straightforward, or may become very complex and require expert testimony. Once a court has valuated the assets of a divorcing couple, it will then "classify" the property.
Property may be classified as marital property, divisible property, or separate property. Marital property refers to all real and personal property acquired by either or both spouses during the marriage and before the date of separation. Divisible property includes (but is not limited to) the appreciation or diminution of the value of marital and divisible property which occurs after the date of separation, but before distribution of the property is made, as well property received after the date of separation, but which was acquired through the efforts of either spouse during the marriage. Separate property is all real and personal property acquired by a spouse before the marriage or by devise, descent, or gift during the marriage.
Once property has been valued and classified, the court will determine how the property will be divided between the parties. A distribution involving an equal share of marital and divisible property going to each spouse is statutorily presumed to be equitable (fair) unless the court finds, considering numerous factors, that an equal distribution is not equitable. See below for a list of the factors that a court must consider when making an unequal distribution.
****IMPORTANT: Timing is a factor in resolving the division of marital assets. You must file for equitable distribution after separation, but prior to a final judgment of absolute divorce. If you have not filed for equitable distribution prior to your divorce being entered, you forever lose your right to the equitable distribution of marital assets through the courts .
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Our attorneys are prepared to help with all aspects of Equitable Distribution, including:
* Filing for Equitable Distribution on your behalf.
* Representing your interests in an equitable distribution trial.
* Requesting an unequal division on your behalf.
* Defending you against an unequal distribution.
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To speak with a Charlotte divorce attorney regarding Equitable Distribution and the division of property, call us today at 704-412-1442. WE CAN HELP.
Our Charlotte lawyers are experienced with the laws and processes associated with the division of property, a.k.a. equitable distribution, after a divorce in Mecklenburg or Cabarrus county. If you have any questions regarding the content on this page, or would like information about how we can help in your matter, contact us today.
There are two main processes by which to formally divide marital assets upon ending a marriage: a property settlement agreement between the parties involved (as part of a separation agreement, prenuptial agreement, or postnuptial agreement), or by equitable distribution through the court system. If the parties dissolving their marriage cannot come to an agreement on their own regarding the separation of property, the courts will assign the dispute to mediation (where the parties will attempt to work out their differences). If mediation is unsuccessful, the process of equitable distribution, described below, will occur.
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