Equitable Distribution Attorney in Raleigh, NC
North Carolina divorce law requires an equitable distribution of marital assets as part of a divorce. The law presumes that an equal distribution of marital property is fair, but that is not always the case. A Family Law judge can reject a divorce settlement agreement if the judge believes its terms do not divide marital assets fairly between the divorcing spouses.
It is faster and less costly if you and your spouse can reach an agreement on how you will divide marital property, financial accounts, and the debt you have acquired together while married. If you cannot, a judge will decide how to divide your property equitably and issue an order to do so as part of your divorce.
If your marriage is headed for divorce, your goal should be to divide all marital assets as part of a separation agreement you and your spouse can present to the judge. The division of marital assets is necessary during divorce, but it can be a contentious part of the process. A divorce attorney with Charles R. Ullman & Associates can assist in property division negotiations and protect your interests throughout the process of separation and divorce.
For compassionate and professional legal assistance, contact us today. Our equitable distribution attorneys at Charles R. Ullman & Associates serve clients throughout Raleigh and Wake County.
What Is Equitable Distribution in Divorce?
North Carolina law requires an equitable distribution of marital property between the parties to a divorce. This is to be a 50/50 division according to the net value of the marital property and divisible property unless the court determines that an equal division is not fair. In that case, the court will decide how to divide the couple’s marital and divisible property equitably.
Marital property includes all real and personal property acquired by either spouse or both spouses during the course of the marriage and before the date they separated. Pensions, retirement benefits, and other deferred compensation earned during the marriage count as marital property. Debt acquired together is marital property too.
Divisible property refers to any money or property that either spouse earned during the marriage but did not realize until after separation. This might be a bonus or commission at work or an interest payment or dividend issued from a bank or stock account considered marital property.
The North Carolina equitable distribution statute does not define equitable. The statute gives a judge a lot of latitude when determining an equitable distribution of assets.
The judge will consider such factors as the length of the marriage, each individual’s income and debt, their age and health, and whether one spouse paid for the other’s education. The statute says the judge may consider “any other factor which the court finds to be just and proper.”
If the division of property is contested, either spouse will have the opportunity to present evidence or testimony that might alter the judge’s opinion about specific assets – such as the marital home, beach property, or other valuables.
Steps to Successful Property Division
Whether in court or in negotiations between you and your spouse, the equitable division process requires three steps:
Identification and Classification
Everything you and your spouse own must be cataloged and then classified as either marital property or separate property. This includes real estate, personal property, financial assets, and debt. Only marital assets and debts are divided as part of a divorce.
Anything acquired after you were married and before you separated is likely a marital asset. Property may be considered separate property if you owned it before you married or if you received it as a gift or inheritance during the marriage.
Each piece of marital property must be appraised to determine its fair market value as of the date you separated. When determining market value, an appraiser can assess any liens attached to the property or the cost of selling the property.
On a first pass, the spouses should seek an equal split of all marital assets. This may require agreeing to sell certain pieces of property and share the proceeds or trading possession of properties of equal or near-equal value until everything is distributed. If a 50/50 split isn’t possible, the final outcome should be fair to both spouses.
When Spouses Can’t Agree to Equitable Distribution of Marital Property
When divorcing parties cannot come to an agreement about the division of assets, they may choose to enter into mediation. A divorcing couple that appears in court without a separation agreement may be ordered to attend mediation.
In mediation, the two parties discuss the issues in dispute with the help of a trained mediator. The mediator is neutral and doesn’t make decisions. The mediator in a divorce helps the couple move forward by keeping discussions focused and asking questions that help to identify and resolve conflicts. The mediation process is informal, with each spouse given the opportunity to have their say and be heard.
If all goes well, mediation can produce a plan both spouses find acceptable and endorse. However, mediation is not binding. Any agreement achieved through mediation must be presented to the court for approval.
Final Decisions on Division of Marital Assets
There are three ways a final plan to distribute your marital assets may be approved:
Asset Division in a Separation Agreement
If you and your spouse can agree on how your marital assets should be divided, you can spell it out in your separation agreement. You can go to court with a separation agreement that addresses all aspects of your divorce, in which case the judge needs only to review it to ensure it is complete and fair, have each spouse state their consent to it, and ratify it as your divorce order.
Asset Division in a Court Order
If the parties to a divorce cannot agree to an equitable asset division plan, one or both must file a claim for equitable distribution with the court, which asks a judge to make decisions about the division of marital property.
This can be time-consuming as the judge hears each contested issue involving the identification, classification, valuation, or distribution of assets. Witnesses, including appraisers, could testify. The judge will decide how to divide the assets and issue an order.
Asset Division by Consent Judgment
If you file a claim for equitable distribution but agree to a division of assets before your case goes to court, you can ask for a consent judgment. In a consent judgment, the court accepts the parties’ statements that the agreement is equitable and does not make any findings of its own regarding the classification, valuation, or distribution of the parties’ property.
Contact a Raleigh, N.C. Equitable Property Division Lawyer
There are many complexities to the division of assets in a divorce, even in an amicable divorce. To ensure that your financial interests are protected, it is important to work with experienced property division lawyers.