One of the basic tasks that must be addressed in the course of a divorce in North Carolina is how to divide the property between the spouses.
It’s an unavoidable part of divorce. After all, you and your spouse may not have children—making child custody and support a non-issue—and there may not be any justification for alimony. But any marriage will inevitably include possessions that have to be divided.
Two types of property
The key concept you must learn at the start is the difference between marital property and separate property under North Carolina family law.
Marital property is stuff that you and your spouse acquired together during the marriage and own together. This is the property that the judge will divide between you as part of the final divorce orders.
Separate property is stuff that is yours alone (or your spouse’s alone). It does not get divided in a divorce—the owner gets to keep it.
Because separate property is not subject to division by the court, many couples are interested in how to determine precisely what counts as separate ownership. In general, to be counted as separate property, the possessions must have been kept in one spouse’s name and control for the duration of the marriage. The property cannot be mingled with any jointly-owned possessions; any cash would have to be held in a separate bank account held in only one spouse’s name.
Some examples of separate property would include:
- Possessions owned by one person before marriage, and kept separately.
- Property given as a gift or bequest to only one of the couple.
- Property obtained by purchase or trade from another form of separate property; for example, when a woman uses money from a bank account she owned before marriage to buy a work of art, that sculpture is also considered separate property in North Carolina.
Any profits derived from separate property; for example, if a man owns an office building that was his property before marriage, the rental income from that building would also remain separate property as long as it was kept apart from the rest of the family assets.
Note that it is not permitted to take jointly owned marital property and convert it to personal control if you believe a divorce is imminent. We have all heard stories of an angry spouse who has cleared out the couple’s joint bank accounts to set up a new account in his or her own name. The money in that account will remain jointly owned marital property, and this action may even be prosecuted as a criminal offense.
Dividing marital assets in North Carolina
As with almost every other aspect of a divorce in North Carolina, the spouses may control much of the division of assets by coming to a joint agreement between themselves; the judge will then incorporate that deal into the divorce orders. If the parties cannot come to an agreement by negotiating through their North Carolina divorce attorneys, the court will decide how to divide assets. So if you want to remain in control of your own finances, you have a strong incentive to make a deal with your spouse over dividing assets.
North Carolina courts follow the equitable division rule for dividing marital property. This means that the judge will not necessarily divide the marriage assets equally, but in a way that she considers to be fair. The attorneys for each side will get a chance to explain why a division favorable to their clients should be ordered. Beyond that, the North Carolina General Statutes list a number of factors the judge may use in deciding how to divide property. It’s worth noting that marital misconduct—actions that hurt the marriage—are not a factor in deciding how to divide property, unless that misconduct hurt the value of assets the spouses own together.
Getting a fair deal in your divorce property settlement
As this introduction shows, securing a fair property division agreement can be very complicated. If you no longer trust your spouse, you may need to get an injunction to prevent the confiscation of marital property or file a lis pendens notice to prevent your house from being sold. It can be difficult even to make sure you have enough cash to live while your divorce is pending.
That’s probably not something you’re able to handle on your own. Fortunately, the Wilmington marital asset attorneys at Speaks Law Firm have years of experience in securing truly just property division for their clients. Call us today at 910-341-7570 or toll-free at 877-593-4233. We represent clients in separation and divorce cases throughout the Wilmington area, including Bayshore, Carolina Beach, Hampstead, Kirkland, Kure Beach, Myrtle Grove, Wrightsboro, and Wrightsville Beach.