Do we need to determine our property distribution before our divorce is final?
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.