What is equitable distribution?
The fair division of assets may need to be addressed as a part of separation or divorce In North Carolina, the division of marital property by a court as a result of separation and divorce is governed by equitable distribution law. This means that courts will distribute property between spouses in a way that is fair and reasonable.
Equitable distribution reflects the idea that marriage is a partnership enterprise to which both spouses make vital contributions and which entitles the homemaker spouse to a share of the property acquired during the relationship.
How does the court determine equitable distribution?
There are typically four steps that the court follows in an equitable distribution case: identify, classify, value, and distribute.
First, the court must know what property exists. All assets and debts owned by one or both of the parties on the date of separation should be considered.
The next step for the court is to determine if the property is marital, which is subject to equitable distribution, or separate, which is not.
“Separate property” is all real and personal property acquired by a spouse before marriage or acquired by a spouse by inheritance or gift during the marriage. Separate property is not subject to distribution by a court; it remains the property of the spouse that acquired it.
“Marital property” is all presently owned real and personal property acquired by either or both spouses during the marriage and before the date of the separation, except property determined to be separate property.
Next the court must determine the fair market value of the property. Some property, like a bank account, may be easy to value based on statements on or about the date of separation. Other assets, such as real estate, pensions, and collections, may be a little more complicated and require the assistance of appraisers.
Finally, the court divides the marital property amongst the spouses. The statute says that the division shall be equal unless the court determines that an equal division is not equitable.
In determining whether equal is equitable, the court must consider a number of factors, including:
- The income, property, and liabilities of each party at the time the division of property is to become effective.
- The duration of the marriage and the age and physical and mental health of both parties.
- The need of a parent with custody of a child or children of the marriage to occupy or own the marital residence and to use or own its household effects.
- Any equitable claim to, interest in, or direct or indirect contribution made to the acquisition of such marital property by the party not having title, including joint efforts or expenditures and contributions and services, or lack thereof, as a spouse, parent, wage earner or homemaker.
- Any direct or indirect contribution made by one spouse to help educate or develop the career potential of the other spouse.
- Acts of either party to maintain, preserve, develop, or expand; or to waste, neglect, devalue or convert the marital property or divisible property, or both, during the period after separation of the parties and before the time of distribution.
- Any other factor which the court finds to be just and proper.
Equitable distribution may be determined before or after a judgment of divorce. But the claim must be raised prior to the entry of a judgment of divorce in order to preserve the court’s ability to make a determination after divorce.
Contact our firm today if you have questions about property distribution or if you think you may need assistance with an equitable distribution claim.