Raleigh Property Division Attorneys
When parties separate in North Carolina, one of the most difficult areas of the separation is the property division. North Carolina has adopted an equitable distribution statute which provides that the marital estate must be divided equitably. Equitable distribution does not necessarily mean equal distribution.
Property may be divided in one of two ways – by a separation agreement or by an order of the Court. In a separation agreement, parties may agree to any division of the marital estate that they choose. The separation agreement must be in writing and must be signed in the presence of a notary public who must notarize the signatures of the parties.
If the property may not be divided by way of agreement, then the Court must determine what makes up an equitable distribution. The Court must conduct a four-step process to divide a marital estate. The first thing the Court must do is identify the marital estate. With marital property, title to the property does not matter. The general rule is that if the property was acquired during the marriage, then it is marital property. There are, of course, exceptions to this rule such as inheritance or property acquired with separate funds.
The second step to the process is to classify the property. In North Carolina, property may be marital, separate or divisible. Marital property is generally easy. It is the car that you bought during the marriage with the salary earned during the marriage. Separate property would be the $10,000 that your Great Aunt Bertha left you in her will. Divisible property is different. It is the property that may have been earned during the marriage but not paid out until after the date of separation – for example commissions or growth on stock that was owned during the marriage but grew in value after the date of separation.
Thirdly, the Court must value the property. After valuing the property, the Court must divide and distribute the estate in an equitable manner after considering a number of factors. The general rule is that an equal division is an equitable division; however, that presumption can be overcome.
It is important to note that a claim for equitable distribution must be raised prior to a final entry of divorce.