Difference between revisions of "Equitable Distribution"
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==When Can a Lawsuit be Filed== | ==When Can a Lawsuit be Filed== | ||
You can file a lawsuit for equitable distribution anytime after you and your spouse begin living in separate homes<Ref>[https://www.ncleg.net/enactedlegislation/statutes/html/bysection/chapter_50/gs_50-21.html#:~:text=(a)%20At%20any%20time%20after,in%20the%20cause%20as%20provided §50-21(a)]. "At any time after a husband and wife begin to live separate and apart from each other"</ref> but before the court signs a divorce decree.<ref name="fiftyeleven">[https://www.ncleg.net/enactedlegislation/statutes/html/bychapter/chapter_50.html § 50-11(e)]. "An absolute divorce obtained within this State shall destroy the right of a spouse to equitable distribution under G.S. 50-20 unless the right is asserted prior to judgment of absolute divorce..."</ref> Since you have to live in separate homes for at least one year before filing for a divorce decree,<ref>[https://www.ncleg.net/enactedlegislation/statutes/html/bychapter/chapter_50.html § 50-6]. "...if and when the husband and wife have lived separate and apart for one year..."</ref> there is always at least a one-year window to pursue equitable distribution | You can file a lawsuit for equitable distribution anytime after you and your spouse begin living in separate homes<Ref>[https://www.ncleg.net/enactedlegislation/statutes/html/bysection/chapter_50/gs_50-21.html#:~:text=(a)%20At%20any%20time%20after,in%20the%20cause%20as%20provided §50-21(a)]. "At any time after a husband and wife begin to live separate and apart from each other"</ref> but before the court signs a divorce decree.<ref name="fiftyeleven">[https://www.ncleg.net/enactedlegislation/statutes/html/bychapter/chapter_50.html § 50-11(e)]. "An absolute divorce obtained within this State shall destroy the right of a spouse to equitable distribution under G.S. 50-20 unless the right is asserted prior to judgment of absolute divorce..."</ref> Since you have to live in separate homes for at least one year before filing for a divorce decree,<ref>[https://www.ncleg.net/enactedlegislation/statutes/html/bychapter/chapter_50.html § 50-6]. "...if and when the husband and wife have lived separate and apart for one year..."</ref> there is always at least a one-year window to pursue equitable distribution. | ||
If both spouses are still living together, either one spouse can move out or one spouse can try to evict the other through a "[[Divorce from Bed and Board]]" | If the court signs a divorce decree before any equitable distribution claims are filed, both spouses will own whatever property is in their name. If both spouses are still living together, either one spouse can move out or one spouse can try to evict the other through a "[[Divorce from Bed and Board]]" lawsuit. | ||
==Step 1: Categorization== | ==Step 1: Categorization== | ||
Revision as of 18:35, 11 October 2022
| Equitable Distribution | |
| Statute: | N.C.G.S. § 50-20 |
| Description | How property and debt are distributed between the spouses |
| Takeaway | Most of the time, most property/debt is divided 50/50, regardless of which spouse is on the title. |
Equitable Distribution means the fair distribution of property and debt between the spouses. In most cases, most property and debt of either spouse is divided 50/50, regardless of which spouse is on the title. However, there are many rules and exceptions. Courts determine equitable distribution in three stages: (1) Categorization (2) Value (3) Distribution.
When Can a Lawsuit be Filed
You can file a lawsuit for equitable distribution anytime after you and your spouse begin living in separate homes[1] but before the court signs a divorce decree.[2] Since you have to live in separate homes for at least one year before filing for a divorce decree,[3] there is always at least a one-year window to pursue equitable distribution.
If the court signs a divorce decree before any equitable distribution claims are filed, both spouses will own whatever property is in their name. If both spouses are still living together, either one spouse can move out or one spouse can try to evict the other through a "Divorce from Bed and Board" lawsuit.
Step 1: Categorization
The first step a court makes is to categorize each property or debt either spouse has as either "marital", "divisible", or "separate".
Marital
"Marital Property" includes any property or debt acquired during the marriage before the separation date,[4] except for property acquired by inheritance or gift[5] or debts that didn't benefit the marriage.[6] Most of the time, most of the property and debt of either spouse is "marital". Marital property includes things like pensions, retirements, or partially-earned future payments.[4]
Divisible
"Divisible property" is any value or loss resulting from marital property after the separation date.[7] For example, if a house, stocks, or cryptocurrency that is "marital" gains or loses value before the spouses finalize equitable distribution, that gain or loss is divisible.[7] Another example would be income earned from renting a home that is marital property, or a payment for work performed during the marriage.[7]
Separate
Separate property includes property acquired (a) before the marriage, (b) after the separation date, (c) by inheritance or gift, (d) acquired from other separate property, and/or (e) professional or business licenses.[8] However, the court can consider whether the spouses intended something to be a gift to the marriage, if there is evidence of that intention.[8]
Value
Distribution
Contact an Attorney
This wiki is provided by North Carolina divorce lawyer David King and his firm King @ Law. You can learn more about King @ Law at www.kinglawnc.com. If you are looking to hire an attorney, have questions, or would like to contribute to this wiki, you can contact attorney King using any of the following methods:
- Schedule a Consultation
- Start a Facebook Chat
- Email: david@kinglawnc.com
- Voicemail: 919 706 5322
References
- ↑ §50-21(a). "At any time after a husband and wife begin to live separate and apart from each other"
- ↑ § 50-11(e). "An absolute divorce obtained within this State shall destroy the right of a spouse to equitable distribution under G.S. 50-20 unless the right is asserted prior to judgment of absolute divorce..."
- ↑ § 50-6. "...if and when the husband and wife have lived separate and apart for one year..."
- ↑ 4.0 4.1 §50-20(b)(1). "Marital property" means all real and personal property acquired by either spouse or both spouses during the course of the marriage and before the date of the separation of the parties, and presently owned"
- ↑ §50-20(b)(2). "Marital Property...except property which is separate property under subdivision (2) of this subsection... (2)...acquired by a spouse by devise, descent, or gift during the course of the marriage"
- ↑ Warren v. Warren, (NC App, June 16, 2015). Finding that student loan debt was not marital, when it only benefited the one spouse's future prospects.
- ↑ 7.0 7.1 7.2 §50-20(b)(4)(a). "...appreciation and diminution in value of marital property... except that appreciation or diminution in value which is the result of postseparation actions or activities of a spouse"
- ↑ 8.0 8.1 §50-20(b)(2).