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 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. | 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. | ||
Revision as of 18:42, 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.
Financial Disclosures
Once a lawsuit is filed, the court will require an "Inventory Affidavit," where each spouse lists all of their property and debt with other details.
Each individual courthouse has their own inventory affidavit form, as well as a "Certification of Initial Disclosures".[4]
the party who first asserts the claim shall prepare and serve upon the opposing party an equitable distribution inventory affidavit listing all property claimed by the party to be marital property and all property claimed by the party to be separate property, and the estimated date-of-separation fair market value of each item of marital and separate property. Within 30 days after service of the inventory affidavit, the party upon whom service is made shall prepare and serve an inventory affidavit upon the other party. The inventory affidavits prepared and served pursuant to this subsection shall be subject to amendment and shall not be binding at trial as to completeness or value. The court may extend the time limits in this subsection for good cause shown. The affidavits are subject to the requirements of G.S. 1A-1, Rule 11, and are deemed to be in the nature of answers to interrogatories propounded to the parties. Any party failing to supply the information required by this subsection in the affidavit is subject to G.S. 1A-1, Rules 26, 33, and 37. During the pendency of the action for equitable distribution, discovery may proceed, and the court shall enter temporary orders as appropriate and necessary for the purpose of preventing the disappearance, waste, or destruction of marital or separate property or to secure the possession thereof.
Real or personal property located outside of North Carolina is subject to equitable distribution in accordance with the provisions of G.S. 50-20, and the court may include in its order appropriate provisions to ensure compliance with the order of equitable distribution.
Step 1: Categorization
The first step a court makes is to categorize each item of property or debt from either spouse as either "marital", "divisible", or "separate".
Marital
"Marital Property" includes any property or debt acquired during the marriage before the separation date,[5] except for property acquired by inheritance or gift[6] or debts that didn't benefit the marriage.[7] 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.[5]
Divisible
"Divisible property" is any value or loss resulting from marital property after the separation date.[8] 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.[8] Another example would be income earned from renting a home that is marital property, or a payment for work performed during the marriage.[8]
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.[9] However, the court can consider whether the spouses intended something to be a gift to the marriage, if there is evidence of that intention.[9]
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..."
- ↑ §50-21(a)
- ↑ 5.0 5.1 §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.
- ↑ 8.0 8.1 8.2 §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"
- ↑ 9.0 9.1 §50-20(b)(2).