Whether the case is in Jacksonville, North Carolina or elsewhere in the state, one of the most common issues presented in a separation and divorce is the division of property. A property division can be imposed by the court or agreed to via a separation agreement (remember that North Carolina requires a couple to live separate and apart for a year in order to file for divorce). This process is commonly referred to as “equitable distribution”. The point is to divide up all the property (and debt) that belong to a couple. Here are a few key concepts:
Separate Versus Marital Property
When a couple divides their property in a property division, there are two types of property the division will have to address: separate and marital. Separate property is any property that either spouse owned prior to getting married. It also includes property acquired after the couple separated, as well as any inheritances either spouse might have acquired during the course of the marriage.
Marital property, on the other hand, includes everything that isn't separate property that the couple acquired during the course of the marriage. This includes income, personal property, real estate, retirement benefits or pensions, and more.
When couples cannot agree on how to distribute their marital assets on their own, it falls to the court to divide it for them. Courts will distribute marital property in an equitable way. This essentially means that the court will divide the property in a way it believes that is most fair to everyone involved.
When the court determines how to divide marital assets, it will weigh a number of different factors. These factors are specifically detailed by North Carolina state law and cover a wide range of issues. For example, a court will consider any income, debts, property, or tax consequences either spouse acquired during the marriage, as well as any support obligations (alimony or child support) either spouse might have from a previous marriage.
Beyond that, the court will also consider how long the couple was married, the age and health of each spouse, the efforts each spouse made during the marriage to acquire property, the actions either spouse took to preserve or waste marital assets, as well as a number of other factors as well.
Needless to say, how a court weighs these individual factors, and the likely outcome of any property division it might order, is a difficult prediction to make. Many of the factors involved do not have easily measurable variables, and the weight accord gives to each factor can differ significantly between courts.
Some divorces involve situations where one or both of the spouses have committed marital misconduct. While marital misconduct is an issue a court takes into consideration when determining alimony, North Carolina courts do not consider it when distributing marital property.