One of the most complicated issues that divorcing couples in Raleigh must face is how assets will be divided. Although some couples are able to do this fairly on their own, coming to an agreement about who will get what, others are not, leaving the court responsible for making a determination.
If you are getting a divorce in North Carolina, here is what you need to know about the law regarding division of assets in a divorce, which things are divisible, and tips for coming to a fair agreement. For more in-depth assistance and legal counsel, contact an experienced Raleigh divorce attorney.
North Carolina Property Division Laws
According to North Carolina law, the court shall “provide for the equitable distribution of the marital and divisible property between the parties.”
In North Carolina, marital property is defined as that which is acquired by one or both spouses during the course of the marriage. Divisible property is defined as:
- Any appreciation or diminution in marital property
- Any property or income that was acquired after separation but was acquired as a result of efforts of either spouse (such as a bonus)
- Passive income from marital property
- Passive increases and decreases in marital debt
In other words, all property and debts that you and your spouse, either independently or together, acquire during the course of your marriage will be up for distribution. The only property that is not divisible during a divorce is separate property, which is property that was acquired by one spouse prior to a marriage or that was acquired during the course of the marriage under very specific circumstances.
So What Does Equitable Asset Division Really Mean?
As stated above, divisible property is subject to equitable distribution between the spouses. But equitable and equal are not the same. For example, the law states that there should be an equal division of marital property unless such division is not equitable, in which case the court may consider the following factors in order to come to an equitable property division settlement:
- The income and liabilities of each party
- The duration of the marriage
- The physical health and age of each party
- The need of one party to occupy a jointly owned home (often for purposes related to child care)
- The non-marital property of each spouse
- A spouse’s contributions as a wage earner or homemaker
- The liquid or non-liquid character of all marital property
- The tax consequences to each party
- Any owned businesses and the subsequent complexities presented
- Any acts of either party to maintain or waste marital property
- Any other factors that the court finds relevant
Asset Division After Divorce — How to Get a Fair Agreement
As is evident by the lengthy list of factors that a court may consider in order to determine how property should be divided, equitable distribution is not always as simple as giving each spouse 50 percent of the assets (and assigning each spouse responsibility for 50 percent of debts). In many cases, it may be fair for one spouse to acquire more than 50 percent of either. As such, it is almost always within your best interest to come to an agreement about how your property will be divided between you and your divorcing spouse outside of court. If you leave the decision up to a judge, you will have little say in what you get.
But if you and your spouse disagree over who should get what, how can you come to a fair decision about asset division in an NC divorce?
One way is through mediation, which is often court-ordered. Mediation refers to a process where you and your spouse meet with a neutral third party (the mediator), who will guide conversation and help you and your spouse to come to an agreement about your divorce assets. Mediation is one of the best options because it puts the power in your hands (i.e. you and your spouse make the decision, not the court), and you can avoid the court process, which can be very time consuming and expensive. Mediation can also set the groundwork for how you and your spouse will resolve things in the future, which can be very important, especially if you have children.
Your attorney can be present during your mediated sessions if you so choose. However, many people choose to attend mediated sessions without legal representation, and then have their lawyer look over everything before an agreement is finalized.
Another option is collaborative divorce. Collaborative divorce is similar to mediation, except that both parties are represented by lawyers and both agree from the start to not go to court. This, too, can be an effective way of coming to a decision about who will get what.
When working through the issue of division of assets in divorce, it is important to have a few things that you are will to give some wiggle room on. Although you surely want the house, the cars, the liquid cash, and other assets without acquiring any of the debt, your spouse probably wants the same thing. What things are you willing to give up in order to get something you really want in return? Remember, you cannot have it all.
What Role Does My Attorney Play?
Sometimes, mediated sessions are not successful, and a divorce must go to court where a judge will issue the final say about who gets what. If this is the case, it will be important that you have an attorney on your side who can present your case to the court and help to sway the judge in your favor.
At Charles R. Ullman & Associates, PLLC, our North Carolina divorce attorneys have helped countless couples resolve tough issues related to asset division. If you are going through a divorce and need legal representation, do not hesitate to call us. You can also contact us using our online form to schedule a case consultation.