Equitable distribution in North Carolina refers to the division of marital property in a divorce. It can be one of the most hotly disputed, potentially contentious aspects of family law litigation in Charlotte.
In part that’s due to disagreements over what is marital property vs. separate property and the value of real property or other assets at issue.
“We’re generally not talking small sums of money. Life savings and assets, collected during the period of marriage, add up. ED claims can be extraordinarily complex because marriage is complex.”
– Bill Powers, Divorce Lawyer Charlotte NC
Put simply, what you think to be entirely reasonable may be the polar opposite of what someone else thinks. It can be hard dividing things up. Marriage, by its very nature, entangles assets.
Emotions and hard feelings, coupled with large assets, can easily cause things to go sideways. Pulling a marriage apart, even in the best of circumstances, is hard.
Add to that marital unfaithfulness, psychiatric issues, substance abuse, or issues over child custody, and it can become a recipe for divisive, protracted litigation.
Mind you, it need not be that way. The better option is to try to set emotion and aside and make the best of a bad situation.How is Marital Property Divided? What is Equitable Distribution?
Litigants in an action for divorce in North Carolina may decide how to divide the marital property between themselves without the need for intervention (litigation) by family court judge. That can be accomplished via several different methods.
Frankly, a lot depends on the willingness of the parties and their divorce lawyers to proceed forward in an amicable manner, avoiding litigation if at all possible. That may take the form of pre-filing negotiations or even something called Collaborative Law or Collaborative Divorce.
Again, it’s important to consider the nature of the marriage, the personalities of the parties, and how things have worked out (or not worked out) during the period of formal separation.
“Given ED (Equitable Distribution) takes time, it often is the last legal issue to resolve. After jumping over a series of high-hurdles, ED may seem like a world-record pole vault attempt.”
– Bill Powers, Charlotte Divorce Attorney
In large estates with substantial assets, real property, businesses, etc., Equitable Distribution and Spousal Support (Alimony) may be related, but competing interests. It can be incredibly complex, involving experts and forensic accounting.
If the separation and divorce have been contentious from the outset due to Domestic Violence, assault, battery, and criminal charges or subject to a DVPO Domestic Violence Protection Order, working on the final big numbers can be problematic at best.
That’s also true if negotiations fall-apart over who gets the kids, child custody, visitation, child support, post separation support, alimony and the other common bones-of-contention in marital disputes.
If you cannot agree to what constitutes a marital asset vs. separate property (property owned by the respective individual litigants) or there are issues as to the true value of a house, vacation home, retirement accounts, vehicles, 401k plans, business valuations, et al, it’s easy for negotiations to come to an impasse.
If that happens, it will be up to the Family Court Judge to divide the property in what he or she believes to be equitable manner.
The key word in Equitable Distribution is equitable. Equitable does not necessarily mean ½.Si Vis Pacem, Para Bellum
If you want peace, plan for war. It’s always better to try to avoid litigation. Duking it out in court is expensive, time consuming, and mentally taxing.
Frankly, the only people who enjoy litigation and being in a courtroom are the divorce lawyers in Charlotte NC.
“This may seem odd, but divorce attorneys enjoy the intellectual stimulation of the courtroom. Our competitive nature and overwhelming desire to protect and help our clients, which I believe are key attributes for tenacious courtroom advocacy, kick in.”
– Bill Powers, Divorce Attorney Charlotte NC
Preparing for battle involves hard work and dedication to trial skills. Good legal decisions are predicated on possessing good information. If you are prepared, there are rarely surprises in court. That’s what is meant by si vis pacem, para bellum.
Contact us online or by telephone at 704-342-4357 to arrange an initial consultation with a Mecklenburg County Equitable Distribution lawyer.How Does a Judge Decide Equitable Distribution?
Marital property is generally defined as all property acquired by either spouse or both spouses, during the course of the marriage, up to the date of separation. All such property is presumed to be marital property unless it meets the definition of separate property.
Similarly, separate property is broadly defined as all property acquired by a spouse, before marriage or during the marriage, as a gift or inheritance to that spouse alone that has not been gifted to the marital estate or otherwise treated or understood to be a marital asset.
The property may be traced to its original source when deciding whether it is marital or separate property. It is also important to understand that marital property includes debts, as well as assets.
Once the marital property is identified, it is divided between the spouses in an equitable manner. The starting point is for an equal division of property, but an equal division may not always be equitable, or fair.
North Carolina courts several complex factors when deciding equitable distribution of marital property, such as:
- Assets and debts of each spouse
- Support obligations from a prior marriage
- Length of the marriage
- Each spouse’s age, health, and capacity to earn an income
- Need of a parent with primary custody to stay in the marital home
- Any contribution one spouse made to the other’s education or career during the marriage
- The tax consequences of selling or liquidating property
- Whether one spouse acted to preserve or develop the property, or acted to waste or devalue property, after the date of separation (marital waste)
If you are looking for tenacious advocacy regarding your separation, divorce, spousal support or complex litigation involving equitable distribution, we are here to help.
Call Attorney Bill Powers at 704-342-4357. You may also email Bill Powers at: Bill@CarolinaAttorneys.com