Equitable Distribution
| 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.
Step 1: Categorization
The first step a court makes is to categorize property 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" means all real and personal property as set forth below:
a. All appreciation and diminution in value of marital property and divisible property of the parties occurring after the date of separation and prior to the date of distribution, except that appreciation or diminution in value which is the result of postseparation actions or activities of a spouse shall not be treated as divisible property.
b. All property, property rights, or any portion thereof received after the date of separation but before the date of distribution that was acquired as a result of the efforts of either spouse during the marriage and before the date of separation, including, but not limited to, commissions, bonuses, and contractual rights.
c. Passive income from marital property received after the date of separation, including, but not limited to, interest and dividends.
d. Passive increases and passive decreases in marital debt and financing charges and interest related to marital debt.
Separate
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:
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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.