North Carolina is an equitable division state, and an equitable property division is not necessarily the same thing as an equal one. In practical terms, an equitable division means that the distribution of marital property and debts must not be an unfair financial burden on either party.
Successful property division requires a deliberate approach, since in most cases, it is rather difficult to modify property divisions once they are done, absent changed circumstances. Section 50-20 of the General Statutes contains most of the substantive and procedural law in this area.
This step is not always as straightforward as it may seem. While some marriages end following a sudden traumatic event, like an affair, most relationships fade over time, perhaps with multiple cycles of separation and reconciliation. During this period, one spouse may have ample opportunity to redirect assets into another legal entity or they may increase their payroll withholding to guarantee a larger tax refund next year and deny community funds to the other party.
Furthermore, the distinction between marital property and separate property is not always black and white, particularly after a long marriage. For example, a couple may elect to use part of the proceeds from a home equity loan to improve rental property that Husband owned prior to the marriage, or Wife’s company might perform free lawn maintenance on the marital residence.
In the first instance, thorough discovery can reveal most hidden assets. Questions must be answered honestly under oath and documents must be produced; any noncompliance is grounds for serious sanctions.
The second instance is commingled property. As an equitable distribution state, North Carolina follows the transmutation principle, which means that separate property may lose its character if it is mixed with marital property or used for marital purposes. This presumption can be overcome by tracing the source, which means that if a spouse can produce clear and convincing evidence of from where the property originated then that portion of the property will remain that spouse’s separate property.
The law presumes marital property will be divided equally. If an equal division is not appropriate, the court may order a division based on a number of factors, including:
- Nature of Property: Even though they may have the same book value, there is a difference between income-producing property, like a rental house, and non-producing property, like a vacant lot.
- Relative Age and Health: Younger and healthier people have a greater opportunity to recover lost wealth.
- Custody of Minor Children: It is usually in the best interest of the children for them to remain in the marital residence, so appropriate property division orders are usually entered.
- Noneconomic Contributions: If a spouse puts off career advancement to care for children, these efforts are recognized.
In dividing real property that one party keeps, like a house, the other party may place a lien on the property which is paid when it is sold.
Partner with Skilled Attorneys
For prompt and professional assistance with a property division in Charlotte, contact the experienced Charlotte divorce lawyers at Remington & Dixon, PLLC. We routinely handle cases in Mecklenburg County and nearby jurisdictions.