Property Division Attorney for Divorces in Raleigh, NC
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.
Definition of Marital Property
Marital property is defined as all assets acquired during the marriage and prior to separation (with certain exceptions). Debt can also be marital property and subject to division. All marital property is subject to distribution between the marital partners. Many couples resolve asset division without court intervention by developing a property settlement agreement. However, if spouses cannot agree on the issue of property distribution, then it becomes necessary for the court to intervene. North Carolina’s “Equitable Distribution of Marital Assets” statutes empower the court to divide all marital assets (including real and personal property) and debts. It is important to note that the rights to equitable distribution are not automatic and must be specifically claimed by one or both spouses.
How Will My Marital Properties 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.
Several factors that the court considers the inequitable distribution of assets:
- income, debt, property of each spouse;
- prior marital support obligations;
- duration of the marriage;
- age and health of each partner;
- needs of the custodial parent;
- contributions of one spouse to the education of another;
- and retirement and pensions.
To ensure the preservation of assets until equitable distribution, the court may enter an injunction to prevent the transfer, deletion, or hiding of assets.
Ways your marital properties 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.
A Raleigh Property Division Attorney Can Help with the Division of Your Marital Assets
Divorce is an emotionally draining process where spouses are sometimes competing for financial resources. A number of spouses agree to the division of their assets and are divorced without ever understanding what they’ve given up. Many partners accept financial terms in the hopes of expediting the divorce process, only to find themselves in a financial crisis sometime in the future. It is important to understand there may be hidden assets and assess the “real” value of the marital estate and business interests. Divorcing spouses are typically unprepared to objectively consider settlement offers, counteroffers, and other complexities associated with different types of investments.
You can protect yourself by collecting as much financial information as possible, including bank accounts, stock options, deferred compensation plans, real estate, brokerage accounts, foreign accounts, offshore trusts, and deferred tax planning devices that can be difficult to sort out and assess. If you and your spouse are in litigation over equitable distribution, your divorce attorney has the ability to discover your spouse’s assets.
Understanding the comprehensive picture of your marital finances is critical to negotiating the best possible financial terms and standard of living. If you believe that your spouse may be transferring joint assets out of your name, hiding assets, or if your spouse has hired a lawyer, it is especially important that you have expert legal representation.
Although the actual property distribution judgment (court ruling) can occur after the divorce, any claim for an equitable distribution of property must be made before the absolute divorce is granted. That makes it extremely important to contact a Raleigh divorce lawyer right away if you are planning to obtain a divorce. Failure to act now could mean you forfeit your right to a say in how marital property is divided.
First, it’s important to establish what is meant by “marital property”. The definition of this term, found under § 50-20 of the North Carolina General Statutes, is “all real and personal property acquired by either spouse or both spouses during the course of the marriage and before the date of the separation of the parties, and presently owned, except property to be determined as separate property.”
By statute, property means not only the marital home and other physical property, but also financial assets such as pensions and retirement. Any piece of marital property, however, may be rebutted as “separate” (not marital), by a preponderance of evidence. Separate property includes property acquired prior to marriage as well as gifts and inheritances. The court may ultimately decide which property is marital and which is separate.
Marital property, furthermore, also includes debts acquired during marriage and owned at the time of separation. If your spouse has significant debt that you do not want to be burdened with after divorce, you may prefer an unequal distribution.
Actually, equitable distribution is not automatic. It must be asserted by one (or both) parties. Depending on the assets and debts held by each party, unequal distribution might be in your favor. Left to the court, more than a dozen “equitable distribution factors” come into play when a judge believes that a non-50/50 split of marital property is fair. You can also agree to a 60/40, 70/30, or any other split of marital assets and debts (even 95/5) in a negotiated settlement.
Whether you prefer to make a claim for equitable distribution or you believe that such an arrangement is not in your favor, a North Carolina divorce lawyer can inform you of all your legal rights and options.
No – and we can’t stress that answer enough. Any claim you file for equitable distribution of your property must be made before the absolute divorce is granted. There are many reasons why this is important.
As a spouse, you are entitled to an “equitable” share of all marital property. Generally speaking, this is any property that either you or your spouse obtained after the date of marriage and before the date of the filing for divorce.
If the spouses can agree on the division of marital assets and debts, they can enter into a separation agreement, or what is sometimes called a “divorce settlement.” However, you will need to file for equitable distribution of property by the court if no agreement can be reached.
Additionally, you may want to file for an injunction that will prevent a spouse from tampering with marital property or an order that temporarily divides property such as a joint bank account before the final equitable distribution decree or settlement agreement is final.
“My case was particularly painful and a little bit scary at times. Everyone I worked with was kind and helpful and I’m happy to say that I am now a divorcée (without incident). A big thank you to everyone at the firm for their help.”
Review by: Samantha S.
Year published: 2023
Rating: ★★★★★ 5 / 5 stars