When the time comes to divide assets in a divorce, people often experience overwhelming feelings of fear and insecurity. Will you have a house? What furniture will you have? Will you be able to pay your credit card bills? What kind of lifestyle will you have once you are divorced?
These and other questions can be difficult to answer if you do not know what assets (and debts) you will hold on to. While every case is different and every property settlement is unique, there are some expectations of what you may be able to keep in a divorce.
In North Carolina, the courts recognize equitable distribution laws, which state that marital property is eligible for distribution between spouses. Separate property, on the other hand, is generally retained by the individual owner.
This means that any property you owned before the marriage would stay with you, as long as it remained separate during your marriage. There are ways to preserve a claim that certain types of property are separate, even if they were commingled with marital property, but in NC this generally only applies to financial accounts and you have the burden to trace the separate funds that were contributed. If you have these types of issues, you should consult with a qualified divorce lawyer to have a complete understanding of your particular situation.
Gifts and inheritances
These assets are typically categorized as separate property, even if you received them while you were married. Anything you purchase with an inheritance and the increase in value of a gift will also be separate property, unless you have co-mingled the assets, titled the property jointly, or otherwise converted it into a marital asset.
An equitable portion of the marital estate
Generally speaking, there is a presumption that the net value of marital property (including real and personal property) should be divided equally. Courts may deviatefrom this presumption if a party can show factors for an unequal distribution as outlined in the equitable distribution statute. The statute lists twelve specific factors which include the following: (1) the need of a parent with custody of children of the marriage to live in or own the marital residence; (2) non-marital assets that one of the spouses has or will receive in the future, such as separate pension or retirement benefits; (3) the difficulty of evaluating certain assets like business interests and the need for one party to retain that interest to continue to earn income from the asset; (4) the tax consequences of selling or liquidating certain assets; and (5) acts of either party to maintain, preserve, develop or expand marital property or acts of either party to waste, neglect, devalue or convert marital property after the separation but before the assets are distributed.
Getting the settlement you want and deserve
Securing a fair and acceptable settlement if you are divorcing is crucial. After all, property division can define how you start the next chapter of your life. Because of how much is at stake and how complicated this process can be, it would be wise to have the guidance and support of an attorney as you navigate this step of divorce.