Raleigh NC Divorce Law - Division of Property Attorney
It is likely that you and your spouse acquired many assets during your marriage. A home, cars, furniture, stocks and pensions are examples. In a divorce, these marital assets will need to be divided. In North Carolina, this division can be done in one of three ways:
- Separation agreement
- Equitable distribution court order
- Consent judgment.
A divorce lawyer from Charles R. Ullman & Associates can explain these options and walk you through the asset division process. Above all, we can take steps to protect your financial rights.
To learn more, contact us today. We serve clients throughout Raleigh and Wake County.
How Will My Marital Assets Be Divided During Divorce?
It’s important for you to understand how the “equitable distribution” or equitable division process works in North Carolina.
This is the approach a court would take to dividing your marital assets. So, this is the same approach that your property division attorney from Charles R. Ullman & Associates would take when analyzing marital asset division in your case.
It is basically a three-step process:
- Identification and Classification
All assets you own must first be identified. This includes everything from a tract of land to a lamp on your desk. Some assets may be “hidden.” For example, your spouse may have kept a secret bank account. If you think it’s needed, an investigator can track down this property for you. Next, your assets must be classified as marital or separate. Generally, if you acquired the asset before marriage or received it as a gift or inheritance during the marriage, it is separate. All other assets acquired after marriage and before separation are marital assets. Only marital assets can be divided.
A value must be attached to each asset. This is the value as of the date of separation. An appraiser can be hired for this step. The appraiser can determine the fair market value of your marital home, cars, motorcycles, boats or other property. An appraiser can also assess the value of a privately held business. Keep in mind: The value can be reduced by any liens attached to the property or the cost of liquidating the property. The marital home is the best example. Let’s assume that the appraised value of the home is $200,000. You may still owe $150,000 on the mortgage. If so, the value of the home as a marital asset is only $50,000. If you sell it during the divorce, you may rack up $5,000 in closing costs. The value of the home would then come out to $45,000.
Finally, all marital assets must be distributed “equitably,” or fairly. In most cases, this means that it will be divided evenly. However, factors such as marital fault, duration of the marriage, and the needs of a custodial parent can result in an uneven distribution – if fair.
Ways your marital assets could be divided
Asset Division by Separation Agreement
If you and your spouse can agree on how your marital assets should be divided, you can set out that agreement in a contract. This is called a “separation agreement.”
The asset division by separation agreement can be reached with the help of a mediator, or a neutral third-party (often a lawyer or former judge). The mediator can help to work out differences.
The goal should be to divide all marital assets in a separation agreement by using the same three-step equitable distribution process as above. It requires some give-and-take. For instance, you may need to give up your financial stake in the marital home in order to hold on to your full pension. Your spouse gets the car. You get the motorcycle.
This agreement can be reached outside of court, before or after the divorce is final. If your spouse failed to fulfill the agreement, it could be enforced through a breach of contract action.
Asset Division by Court Order
If you and your spouse can’t agree on how to divide your marital assets, you can go to court and seek an order from a judge. You would need to file a claim for equitable distribution before your divorce was final in Wake County District Court.
The judge would decide any contested issues involving the identification, classification, valuation or distribution of assets. Witnesses, including appraisers, could testify.
If either you or your spouse fails to follow the order, you would face being held in contempt of court.
Asset Division by Consent Judgment
If you file a claim for equitable distribution but agree to a division of assets with your spouse before your case goes to court, you can seek a consent judgment. If the court deems the agreement to be fair, the court will sign off on it and enforce it (if needed).
In some situations, you may need a court order for other matters. For instance, a court may need to order an administrator to distribute a portion of your spouse’s pension to you. This is called a QDRO, Qualified Domestic Relations Order.
Our Raleigh Asset Division Lawyers Can Help with Division of Your Marital Assets
As you can see above, there are different ways to divide marital assets. Each option can be complex. It is important to work with a property division attorney who has experience in this area.
Charles R. Ullman & Associates is available to help. Simply contact us today and schedule a confidential review of your case.