In North Carolina, property is equitably distributed at the end of a marriage if properly requested.
Division of property, also called equitable distribution of property, is one aspect of the break-up of a marriage. Property division may occur before, but not after, the divorce unless a valid claim for equitable distribution was filed before the divorce. You must file a complaint for equitable distribution before you are divorced! If the parties do not resolve property division in writing by agreement or through the filing of a lawsuit for equitable distribution before one party obtains a divorce, property vests based on title. In other words, if a husband has a pension in his name and the wife does not file for equitable distribution or otherwise resolve property before the divorce, the husband keeps his entire pension.
Marital property subject to division
All property acquired during the marriage is subject to division if a claim for equitable distribution has been timely and properly made. In the Fifth District, a Schedule of Assets is used to help identify marital property. Once the property is identified, it is classified as marital, separate or mixed (part marital and part separate), valued and divided. In the past, the marital home used to be the most valuable marital asset. Today, a spouse's pension, 401(k) and other retirement benefits are often the most valuable asset subject to division.
Dividing marital property
After a lawsuit for equitable distribution is filed, the plaintiff has 90 days to file an initial listing (this varies somewhat by county under their local rules so you should always seek the counsel of an attorney). Here is an example of an initial property listing used in the Fifth Judicial District.
Equitable Distribution (ED) doesn't always split property equally (i.e., not fifty-fifty). With equitable distribution, the court considers distributional factors, the classification of property (marital, separate, or mixed), and other factors. Both assets and debts are considered during property distribution. The statutory factors include:
There are two approaches to property division: by Separation Agreement and Property Settlement (SAPS) or by a court action for equitable distribution. Under either approach, it is advisable to obtain disclosure under oath of the property that the other party has (see Discover Discovery: The importance of the Discovery Process in Family Law for more information on why such disclosure is important in an equitable distribution action). If an ED claim is filed, there are strict deadlines which vary by county to which must be strictly adherred. ED cases are generally mediated by a trained mediator before the case goes to trial. Most equitable distribution cases are resolved at mediation without trial.
Contact an attorney who routinely represents clients involved in divorce matters, including property distribution, for advice concerning your specific situation. Examples provided on this site are for informational purposes only and may not be suitable for your situation.
N.C. Gen. Stat. §50-20 sets forth NC Law on Equitable Distribution including the specific factors the court must consider for making an unequal division of marital property
N.C. Gen. Stat. §50-20 sets forth NC Law on Equitable Distribution Procedure including the requirement for filing Initial and Responsive Property Listings and sanctions for delay
Message an attorney, check your legal calendar, or track your case in our secure online office (registration required)