A divorce can be a tricky thing to navigate, and figuring out how to divide all the assets you share can just further complicate things.
North Carolina is an equitable distribution state, which means that the state will try to divide assets fairly based on a couple’s current circumstances. It’s important to note that equitable does not always mean equal, but what the state determines is fair to both parties. The equitable distribution process can be complex and confusing because deciding what is actually “fair” is up to the court’s discretion.
The types of property in North Carolina
When you or your spouse file for divorce and division of property, the state will categorize your property as one of three things:
- marital property
- separate property
- divisible property.
Marital property is defined as any property acquired by either spouse, or both, between the date of marriage and the date of separation, excluding separate property (we’ll get to this in a second). Marital property consists of both personal and real property, which can include:
- the incomes of both spouses
- bank accounts and investments
- the marital home and any rental property
- vehicles, furniture, appliances, artwork, etc.
- any gift from one spouse to the other
- mortgages, loans, and debts
Debt acquired during a marriage is considered marital property, regardless of whether the debt is in one spouse’s name or both. For example, if your spouse pursues a college education during your marriage that requires them to take out student loans, you are equally responsible for the debt despite the loans being in their name only.
Separate property is all real or personal property that one spouse acquired before the marriage or was gifted or inherited during the marriage. Separate property is not subject to equitable distribution, however, the spouse who owns the property must prove to the court that it is separate property otherwise it will be considered marital property. Separate property can also become marital property, for example, if one spouse owned a house before the date of marriage but then added their spouse to the title, the house would then be considered marital property and subject to equitable distribution.
Divisible property is treated similarly to marital property, in that it is divided fairly between both spouses by the state, but the term refers to any changes in value that occur after the date of separation but before the date of division of property to marital property that was acquired before the date of separation. This includes changes in value, whether positive or negative, that occur to marital property after the date of separation and any income from marital property that either spouse received after the date separation.
How property is divided fairly
After property is identified as one of the previous three categories, it is valued. Based on evidence presented, the court decides the net fair market value of the property, or the price a reasonable buyer would pay to purchase the property minus the value of any debts associated with it.
Once a value is obtained, the court goes about equitably dividing the property between both spouses. Typically this is done by dividing marital and divisible property in a 50/50 split, but the court takes certain factors established by the North Carolina General Statutes into consideration to determine if a 50/50 division is unfair to either spouse. Some of the factors considered include:
- The length of the marriage
- The age and health of both spouses
- Contributions of one spouse to the other’s education or career development
- The need of a parent with custody of a child to own, occupy, or make use of the marital home
- The efforts of each spouse in acquiring marital property
- Contributions by a spouse that increased the value of any separate property
- Actions by either spouse that either preserved and increased or wasted and devalued the property
- Any other factor the court finds to be just and proper
If any of these factors are determined by the court to make a 50/50 division of property “unfair” to either spouse, the court will use its discretion to create a fair split.
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Divorces and division of property can be complicated matters, but having an attorney experienced in family law on your side can make all the difference. We know you’ve worked hard to build your life and we’ll work just as hard to protect you and help you keep what is yours. You deserve to have a professional you can trust fighting for you; contact us today to get started.