Equitable distribution is the division of marital assets, usually as part of a divorce proceeding. When you’re a spouse considering divorce, you need to know how to file for equitable distribution. You also need to know how to protect your interests and get justice.
Our Charlotte family law attorneys explain how to file for equitable distribution in North Carolina.
Steps to File for Equitable Distribution in North Carolina
1. Determine if you meet the standards for filing
To file for equitable distribution in North Carolina, you must meet the filing requirements. You must be:
- Married; and
- Physically separated living in different residences
There is no waiting period – as soon as you are separated from your spouse, you may file for equitable distribution. There is a one-year waiting period for a judgment of divorce.
2. File a complaint for equitable distribution
Equitable distribution may be awarded before, after, or at the same time as a judgment of divorce. (Note: a petition for equitable divorce must be pending when the judgment of divorce is entered, or it may be waived.)
When you’re ready to seek equitable distribution, you prepare a complaint. A complaint is a formal document filed in court. It states several things, including:
- The names of the spouses, as the plaintiff and defendant
- Statements of residency and grounds to file in North Carolina
- A statement that the parties have acquired divisible property
- A request for equitable division of the assets and other relief
- The signature of the person filing, and their attorney’s information, if they have an attorney
Once you prepare the complaint, you file it with the appropriate court. Each court has instructions for filing, and you will pay a filing fee. After you file, you must serve the legal documents to the other party in compliance with court rules.
Note: Since an equitable distribution can be sought before or contemporaneously with a divorce, it’s important to speak with our attorneys as soon as possible. Let us evaluate the best way to protect your interests and the appropriate steps to take to seek equitable distribution in your case.
3. Next steps
Prepare and Submit an Inventory
The party who files must prepare an inventory of property. It must include all property – even if it is categorized as separate property. Each item must have an estimated value. The other spouse will also have to prepare and serve their own affidavit of property.
It’s okay if the affidavit isn’t complete or the values aren’t entirely accurate. But the parties must make a good faith effort, and they are affidavits that are treated like interrogatories. The court may issue a temporary restraining order to prevent the dissipation of assets.
Source: N.C. Statutes § 50-21.
Obtaining Scheduling Orders and Build Your Case
The court will issue a discovery order and rule on other motions made by either party. They will also order mediation (in most cases), a final pre-trial conference, and trial scheduling.
The case will move forward towards a negotiated resolution or disposition at trial. Either party may build their case through discovery methods available using rules of civil procedure.
What do you include in a claim for equitable distribution?
When spouses separate, their property is divided into three categories:
- Marital property
- Divisible property
- Separate property
Marital property is most property acquired by either party during the marriage. Inheritances and gifts to a spouse may be excluded. Divisible property may be acquired after separation, but it may still be because of the marriage and included in equitable distribution.
Separate property belongs solely to either spouse. It is not included in equitable distribution and continues to belong to that spouse. The spouses may contest what category a certain item of property falls in and whether it should be included in equitable distribution.
Equitable Distribution FAQs
What is equitable distribution?
Equitable distribution is the awarding of marital property based on what is fair. It may or may not be an equal distribution. Equitable distribution considers all the factors relevant to a just division of assets.
Is North Carolina an equitable distribution state?
North Carolina is an equitable distribution state. The court divides the marital estate between the parties based on what it believes is just under the circumstances present.
When can you file for equitable distribution in North Carolina?
A spouse may file for equitable distribution in North Carolina any time after they separate.
What date is used to value property for equitable distribution?
Marital property is valued as of the date that the parties separate. Divisible property is valued as of the date of distribution.
What does the court consider when it makes an order for equitable distribution?
The court relies on the factors listed in North Carolina Statutes § 50-20(c) when making an order for equitable distribution. The court must consider all 12 factors listed in § 50-20(c), including:
- Income and liabilities of each party
- Prior support obligations from a previous marriage for either party
- Duration of the marriage
- Age and physical health of the parties
- Who has child custody, and if that means they need the marital home or its contents
- Pensions and retirements, even if they are not marital property
- Contributions of a homemaker
- Development of a spouse’s career
- Increase in the value of separate property during the marriage
- Liquidity and non-liquidity of assets
- Business valuations and the benefit of leaving the business intact, owned by one spouse
- Tax consequences of division and liquidation
- Development or waste of assets by either party
- Other important factors
The court may weigh the various factors as it thinks it’s appropriate.
What if there’s a prenuptial agreement? Can I still get equitable distribution?
In general, prenuptial agreements are recognized in North Carolina. To be effective, the agreement must have been executed correctly and lawfully.
What if I get a divorce without equitable distribution?
A claim for equitable distribution should always be pending or complete at the time of divorce. If an absolute divorce is granted, and there is no claim for equitable distribution of assets, a spouse may be walking away from assets that they are entitled to.
Is equitable distribution the same as temporary orders while a divorce is pending?
No. Equitable distribution shouldn’t be rushed because a party needs support during the separation period. A party may seek post-separation support under North Carolina Statutes § 50-16.2A.
Attorneys to File for Equitable Distribution in North Carolina
Are you considering filing for equitable distribution in North Carolina? Are you ready to file?
Separation from a spouse is one of the most impactful life changes that a person can have. It’s important to protect your interests. Our attorneys can evaluate all your options and create a plan of action for you. Contact us today for a personalized and confidential review of your claim.
