What is equitable distribution?
Equitable Distribution is North Carolina’s method of dividing marital property. This includes physical property, such as houses, cars and household furnishings, but also includes financial assets and debts, such as bank accounts, business interests, retirement funds, and credit card debt.
What items and assets are considered as part of a distribution?
All physical property, assets and debts can be subject to equitable distribution. In North Carolina, the value of the marital estate is based upon the value of everything as of the date of separation. The value is considered to be the sum total of all assets, minus any debts.
Is property always divided 50/50?
While most negotiations strive for arriving at an equal balance, there are occasionally factors that arise where what is fair is not an even 50/50 balance. Some of these factors may be:
- Length of the marriage
- Age and health of the parties
- Financial state at the time the division would be effective
- Support obligations from a prior marriage
- Need for custodial parent to own or reside in the marital home for the benefit of the children
- Unequal contribution to the attainment of property
- Contribution of one party to the other spouse’s career or education
- Behavior one behalf of one of the parties to maintain or devalue property after the date of separation
- Tax issues
Is fault used in determining how property is divided?
Fault is generally only considered as a factor in equitable distribution if a party’s conduct somehow had an economic impact on the value of the marriage property, such as excessive gambling on the part of one of the parties. Typically, it is very difficult to prove such assertions, however, and most settlement agreements or litigated suits still end up being fairly close to 50/50.
What property is considered separate and what is considered marital?
Marital property is any property that was obtained by either party after the date of marriage, but before the date of separation. Exceptions are made for certain gifts and inheritances.
Separate property is any property obtained before the marriage. Something may also be considered separate property if it was given as a gift with the clear intention that it was to be considered separate property at the time it was gifted. Exceptions also apply to items a party inherits. It may be necessary to prove that an item was inherited or received with the intention of being separate property, which can at times be difficult to document.
When can I file a claim for equitable distribution?
Once you and your spouse are living separate and apart, either one of you may file for equitable distribution.
Is there any way that I can ensure that I get what I want?
The best way to ensure that you are happy with the distribution of your property is to work out a settled agreement outside of the Court. Many parties find that if they are willing to be fair and equitable, they are more likely to end up with a more satisfactory division of property, and perhaps a show of good faith negotiations might allow you to make arrangements for any items of property in which you are particularly interested. If the parties are unable to agree on their own, a Judge will divide your property for you, and while you may try to request certain items, ultimately it is entirely up to the Judge’s discretion.
Can I receive a temporary order to protect my property?
It is possible to receive a temporary, partial distribution of some property under certain circumstances. If necessary, a party may also file for injuctive relief, which can protect against wasting, discarding, or converting property until the Court is able to make a ruling or the parties can reach an agreement.
If my spouse and I have agreed on dividing our property, do I still need to file a claim?
If you and your spouse have developed an agreement dividing your property, you do not have to file for Equitable Distribution in addition. In fact, as long as the agreement has been executed in compliance with the statutory guidelines, an agreement would prevent you from filing for Equitable Distribution in the future. Be careful. Before signing anything with your spouse, it may be wise to have your document reviewed by an attorney. Even if you both have the best of intentions, your written document may not reflect your actual intentions, or may not include certain elements that are required by law in order to make the agreement valid. If you have already done the hard work of making decisions about the actual property division, most attorneys will only charge you a minimal fee to review a document and make simple revisions.
Miscellaneous
Do alimony and child support effect the distribution of property?
No. According to North Carolina statutes, alimony and child support should have no bearing on the division of marital property.
Can pensions and retirements be divided?
Yes. Most people forget that their retirement or pension is one of the most valuable assets that they have and it may also be subject to division under Equitable Distribution statutes. While any contributions made prior to the marriage, and the passive growth of those sums, are considered to be separate property, any retirement or pension contribution made after the date of marriage and before the date of separation is considered to be marital property. Both parties will be obligated to determine what the marital portion of these accounts are, and execute a Qualified Domestic Relations Order or QDRO, which equalizes the difference in the accounts. For example, if the husband has $80,000 of marital property in his IRA and the wife only has $40,000 of marital property, then the husband would have to use a QDRO to section off $20,000 of his retirement fund as the wife’s sole and separate property, leaving them both with an equal share of $60,000. For more information about a QDRO, please refer to the next section: what is a QDRO?
What is a QDRO?
A QDRO (pronounced quad-ro) is a Qualified Domestic Relations Order. QDROs are a way for couples to divide retirement and pension funds without having to pay penalties for early withdrawal. A QDRO sections off part of a retirement or pension as one of the party’s sole and separate property. Once the money is transferred, the party has the same options as they would with any retirement; they may leave the account as it is to appreciate over time, they may roll it over into another existing account, or they may withdraw the funds subject to any fees, taxes, or penalties.
ARTICLES AND FORMS
• Durham County Equitable Distribution Affidavit
• Durham County Equitable Distribution Inventory Affidavit
• Durham County Family Court Rules
• Durham County Financial Affidavit
• Wake County Equitable Distribution Inventory
• Wake County Family Court Rules
• Wake County Financial Affidavit
• Wake County Notice of Financial Information Required