North Carolina is a no-fault divorce state – you don’t need a reason to get divorced. Separate for a year, state your intention to get divorced at the time of that initial separation, and live in the state for six months before you file for divorce, and you have met all of the requirements for divorce in the Tarheel State. Unlike many no-fault divorce states, however, North Carolina is not a community property state. North Carolina divides property in a process known as “equitable distribution.” The process can be complex, and property is not always divided 50-50. Although the law presumes that an equal division is equitable, that is not always the case; and the process will result in a distribution the court considers to be just under the circumstances.
Either Party Can File an Equitable Distribution Claim
If you and the spouse you are divorcing agree on how to divide property, equitable distribution never comes into play. In the event you cannot agree, however, either spouse can file a claim for equitable distribution of property. There are only two requirements for filing such a claim:
- You have to be married to the person against whom you are filing a claim for equitable distribution.
- You also must be separated from that person with the intent to divorce.
If you meet those requirements, you can file your claim. Once you file, the judge will examine all of the property and debts you and your spouse own to determine how, under state law, that property should be divided in an equitable fashion. The judge’s first task is to determine what category the property belongs in. In North Carolina, property falls into one of three categories. It can be marital property, divisible property, or separate property consisting of what one spouse or the other owned before entering the marriage. This applies to both assets and debts. Divisible property is property acquired after separation, which might or might not be divided between the parties to a divorce, depending upon circumstances. Marital and divisible property are not necessarily split equally, but in a manner the court decides is “equitable.”
If You Want Equitable Distribution of Property in a Divorce, Talk to Remington & Dixon
You can file for equitable distribution as soon as you and your spouse are separated. To do so, you should talk to the Charlotte divorce law attorneys of Remington & Dixon. You can contact us online or by calling (704) 247-7110.
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Equitable Distribution FAQs
How Long Do We Need to Be Separated Before Filing for Equitable Distribution?
There is no set time period. Once you are separated with the intent to divorce, either party to the marriage can file for equitable distribution. However, it is important to note that a claim for equitable distribution must be pending before your divorce judgment is entered in order for the court to have authority to divide your property.
What Factors Are Considered in Equitable Distribution?
When it comes to determining an equitable division of property, there are more than a dozen factors listed in state law, but among them are the assets, debts, and income of each spouse, the length of the marriage, the respective age and physical and mental health of the two spouses, which spouse will have custody of any children, prospective pension or retirement income of the spouses, and any other factor the court considers relevant to an equitable outcome.
Can My Spouse Sell Property After We Separate?
If the property is marital or divisible, the answer is no. To prevent that from occurring, you can file for an injunction when you file for equitable distribution to prevent your spouse from disposing of property in which you might be entitled to a share.