The rights to equitable distribution (“ED”) of marital property vest at the time of the parties’ separation. The rights to ED are not, however, automatic, but must be specifically Read More »

With the exception of the two special technical provisions, an absolute divorce bars the assertion of a claim for ED that was not already pending at the time of the divorce. This bar has been Read More »

First, the court is required to identify and classify all the parties’ property, based upon the evidence presented regarding the nature of the asset or debt. Identification is the assessment of Read More »

If you and your spouse are able to agree about the division of your property, then your arrangement will be documented with a separation agreement. If you are unable to agree, it will be necessary Read More »

In North Carolina the process of dividing the property and debts of a marriage is called Equitable Distribution. Read More »

Equitable Distribution is a three step process conducted by the court when spouses are unable to divide property on their own. The first step in the process is “identification”. The court Read More »

Among the factors considered are: 1. The income, property and debts of each party, 2. Support obligations for prior marriage, 3. The length of the marriage and age and health Read More »

Equitable distribution law presumes that an equal (50/50) division of the marital property will be equitable. Most judges in this state favor awarding each party fifty percent of the marital Read More »

Fault is not relevant in an equitable distribution proceeding, except to the extent that marital misconduct has had an economic impact on the marital estate. Where the equitable distribution factors Read More »

In distributing marital property, the court conducts a three-step analysis. Only the parties’ marital property, which includes both assets and debts, is to be distributed. An order distributing Read More »

Classification is the process by which the court applies the statutory definitions of marital and separate property to the specifically identified items of property in which the parties have some Read More »

The definition of marital property is found in section 50-20(b)(1) of the North Carolina General Statutes — all real and personal property acquired by either spouse during the course of the marriage Read More »

The definition of separate property is found in section 50-20(b)(2) of the North Carolina General Statutes — all real and personal property acquired before marriage, or property acquired during the Read More »

Some property is not, properly speaking, either marital or separate. For example, property acquired after separation does not fall within the statutory definitions of either marital or separate .
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“Property” includes both assets and debts. All assets and debts acquired during the marriage, and owned on the date of separation, are valued as of the date of separation in North Carolina Read More »

When and how property is “acquired” is crucial to classification. The cases have developed the view of acquisition as an ongoing, dynamic process of obtaining equity (net value) in an item Read More »

Some property is of dual character, being part marital and part separate. Numerous cases have addressed these distinctions and should be consulted for specific details beyond the scope of this book. Read More »

The court is required to fix the net value of the marital property as of the date of separation, with net value being market value, if any, less the amount of any encumbrances. The net value is thus Read More »

At any time after the separation of the parties, either may file an action for ED, either as a separate action, or together with another action brought pursuant to Chapter 50, or as a motion in the Read More »

Temporary orders and injunctive relief are obtainable under the terms of special statutory provisions that allow for injunctive relief to prevent disappearance, waste or conversion of property Read More »

In most ED actions, the statutes do not permit one party to recover attorney’s fees from the other party. The one small exception to this rule allows the discretionary award of reasonable
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There are various defenses that can be asserted against a claim for equitable distribution including absolute divorce, a prior property settlement, reconciliation, death, and federal law. Read More »

In addition to bar by absolute divorce obtained without preservation of an ED claim, the other common bar to ED is prior execution of a valid, comprehensive property settlement dividing the Read More »

In general, under prior law reconciliation was deemed to void the executory or unperformed provisions of a separation agreement that contained property provisions. The courts now draw a distinction Read More »

Another thing that can affect an ED claim is whether both parties survive. The time of a spouse’s death can make a critical difference in the viability of a pending ED action. The death of a Read More »

When does federal law take precedence over state law in terms of equitable distribution? In a limited number of instances, federal law may preempt a State’s right to make a party’s property Read More »

According to express statutory provisions, distribution of marital property must be without regard to the issues of alimony and child support.

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In most instances you can can sell your primary residence without incurring any tax liability. You can make up to $250,000 in profit if you’re a single owner, twice that if you’re married, and not Read More »

In the division of marital property, one of the most frequently overlooked assets is a spouse’s pension or retirement plan. However, this asset can be more valuable than all the others combined. Read More »

n order to effectively divide a qualified plan – including pension plans, profit-sharing plans, and 401(k) plans – a Qualified Domestic Relations Order (QDRO) must be entered by the Court. It is not Read More »

Generally speaking money received as part of the equitable distribution of property incident to a separation is not taxable. If a transfer of property (and money) occurs between spouses within one Read More »

The definition of marital property is found in section 50-20(b)(1) of the North Carolina General Statutes — all real and personal property acquired by either spouse during the course of the marriage and before the date of separation, and “presently owned,” except property determined to be separate property in accordance with the statute. Read More »