Equitable Distribution in Winston-Salem, Greensboro, & High Point

When a couple decides to get divorced, they need to divide their property, assets, and debts from one household into two. It’s best if the two people can reach an agreement on what to do with their property. If not, the court will divide up the property if they cannot come to an agreement. In these cases, it is critical that all the assets of the marriage be properly accounted for and valued. Having an experienced divorce attorney on your side can be invaluable through the property division process as they can walk you through the process and protect your interests.

Under North Carolina Law there is a strong presumption that dividing the marital assets equally (50/50) is equitable. But, in many situations, there is a reason for the court to divide them unequally to make the situation equitable. You can do this with a voluntary agreement or through a claim for Equitable Distribution.

Types of Properties

In property division, there are three separate types of property the court will consider:

Separate Property

Separate property includes all property owned by either spouse before the parties’ marriage. It includes property acquired during the marriage by one spouse through an inheritance or gift from a third party. And, it includes property acquired after the date of separation with non-marital funds.

A gift from one spouse to the other during the marriage is marital property, unless the donor states at the time of the conveyance that it is intended to be separate property. Separate property also includes income from separate property and property obtained in exchange for separate property.

Marital Property

Marital property includes property presently owned that was acquired during the marriage except property found to be “separate property.” Marital property also includes all vested pension and retirement benefits accrued between the date of marriage and the date of separation.

Divisible Property

Divisible property includes post-separation increases and decreases in the value of marital property. It includes property received after the date of separation that was acquired as a result of the marital efforts of either spouse before the date of separation. It also includes passive income generated by marital property and received after the date of separation. And, post-separation increases in marital debt.

In many ways, “divisible property” is treated the same as marital property, as both are presumed to be divided equally.

However, one difference is that divisible property is valued by the court at the time of trial, where marital property is valued at the date of separation. Divisible property is subject to an “interim distribution” by the Court, which may be one way to deal with anticipated changes in the value of assets or changes in your debts incurred during the marriage.

Factors that Affect Equitable Distribution

Equitable distribution can take place before or after a final divorce judgment, so long as your rights to equitable distribution are preserved before the judgment is entered. Although there is no precise formula for dividing the property, there is a strong tendency in North Carolina to divide the property or its equivalent value equally.

There are thirteen (13) factors that a Court may consider in deciding whether an unequal division is appropriate in your case, including: