Property FAQs

How do I ensure my right to equitable distribution of marital assets?
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 [...]
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Does absolute divorce bar an equitable distribution claim?
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 [...]
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What is the identification of property in the equitable distribution process?
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 [...]
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Who will divide our property?
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 [...]
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What is Equitable Distribution?
In North Carolina the process of dividing the property and debts of a marriage is called Equitable Distribution.
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What is the Equitable Distribution process in North Carolina?
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 [...]
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What factors are considered by a judge?
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 [...]
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Is the division of property always fifty-fifty? What factors are considered in an unequal distribution of property?
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 [...]
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Is fault used in dividing marital property?
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 [...]
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What are the steps that the courts take in dividing property?
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 [...]
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What is the classification of property in the equitable distribution process?
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 [...]
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How is marital property defined?
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 [...]
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How is separate property defined?
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 [...]
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What property is neither marital nor separate?
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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What does the term property include?
"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 [...]
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What role does acquisition of property play in the classification of property?
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 [...]
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What is the dual classification of property as partly marital and partly separate?
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. [...]
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What is the valuation of property?
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 [...]
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When can I file for Equitable Distribution and when is ED determined?
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 [...]
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Can I receive a temporary order to protect my property? What is injunctive relief?
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 [...]
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Can I recover attorneys fees with Equitable Distribution?
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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What are the defenses against equitable distribution?
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.
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If my spouse and I have divided our property, can I file an equitable distribution claim?
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 [...]
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What effect does reconciliation have on equitable distribution?
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 [...]
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How does death effect an unresolved equitable distribution claim?
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 [...]
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When does federal law take precedence over state law in terms of equitable distribution?
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 [...]
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Can alimony and child support affect the distribution of property?
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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What are the tax implications for selling the marital home when dividing property?
Rollover Of Capital Gains One of the most common results of ending a marriage is that the marital home is put on the real estate market and sold to a third party. The sale of the marital home can [...]
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Can pensions and retirements be divided?
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. [...]
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How are qualified plans, such as pension plans, profit-sharing plans, and 401k plans? What is a QDRO?
In 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 [...]
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After a separation, is money received as the result of property distribution taxable in North Carolina or taxable by the federal government?
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 [...]
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