North Carolina Considerations in Separation of Assets During a Divorce

By Heather Frances J.D.

Property division is one of the most important issues a divorcing couple faces -- and sometimes one of the most contentious. North Carolina law provides guidelines for North Carolina courts to consider when dividing property, and spouses can reach their own property division agreements instead of asking a judge to decide for them.

Property division is one of the most important issues a divorcing couple faces -- and sometimes one of the most contentious. North Carolina law provides guidelines for North Carolina courts to consider when dividing property, and spouses can reach their own property division agreements instead of asking a judge to decide for them.

Court Division

During the divorce process, North Carolina couples can make their own property settlement agreement, either on their own or with the help of mediation. If the spouses cannot agree, they can request that the court divide their assets. They do this by filing a separate complaint for the court to divide assets before the final divorce judgment is entered. Generally, North Carolina courts make decisions about property division in a separate hearing after the divorce is granted.

Divorce is never easy, but we can help. Learn More

Equitable Distribution

North Carolina is an “equitable distribution” state, so courts distribute marital property equitably between spouses, but not necessarily equally. Courts presume the fairest split is an equal split, but the court can split a couple’s property in a way that isn’t exactly equal by considering several factors listed in North Carolina law. These factors include the spouses’ income, duration of the marriage, preexisting support obligations and the likelihood that each spouse will receive retirement income. The judge also considers the contributions each spouse made to the marriage, including contributions one spouse made as homemaker. Thus, even if one spouse did not work outside the home during the marriage, the court can consider her contributions when it decides how property should be divided.

Separate Property Vs. Marital Property

North Carolina judges can divide a couple’s marital property only, not the individual, separate property belonging to each spouse. Property acquired during marriage is generally considered marital property, subject to the court’s division. But property acquired by one spouse during the marriage as a gift or inheritance, as well any property acquired before marriage, is considered the separate property of the spouse who acquired it. However, separate property can become marital property if the owning spouse gives it to the other spouse during the marriage or if it becomes mixed with marital assets so that it cannot be separated anymore.

Fault

North Carolina permits divorce on one of two grounds, living separate and apart for at least a year or incurable insanity, so fault is not legally relevant as a reason for the divorce. Fault is also not legally relevant when it comes to property division. While dividing property, the court will not consider who caused the marriage to break up, even if one spouse committed adultery or abandoned the other spouse. However, if one spouse’s misconduct directly affected marital property, the court may consider the impact to the estate. For example, if one spouse spent marital funds on his adulterous affair, the court may consider that misconduct when distributing property.

Divorce is never easy, but we can help. Learn More
Grounds for Divorce & Property in Kentucky

References

Related articles

Disposition of Assets During a Divorce in Arizona

Arizona is one of nine community property states. This means that Arizona family law courts perceive property amassed over the course of a marriage as belonging to both spouses equally. However, courts in the state have discretion as to how to divide marital assets. Generally, the goal is to divide property in a way that's fair to both parties.

Distribution of Marital Property in a Final Divorce Decree in Virginia

Property division in divorce can be difficult to understand in equitable distribution states because there are few hard and fast rules. Virginia is such a state. Unlike in community property states -- where courts evenly divide the assets acquired during a marriage -- equitable distribution laws give a great deal of latitude to judges to decide what is “fair.” However, some general guidelines apply.

Financial Gifts in a Divorce

In many cases, if you personally receive money as a gift, it will not be affected by a divorce. Generally, gifts made to one spouse are considered "separate property," meaning it belongs solely to the spouse who received it, even if received during the marriage. However, courts may consider the financial resources of each spouse, including separate property, when determining the terms of the divorce. While divorce laws and property division vary by state, courts may have discretion to divide separate property in a divorce depending on the circumstances.

Get Divorced Online

Related articles

Mississippi Divorce Laws on Equitable Distribution

Mississippi divorce law changed significantly in 1994, when the Supreme Court handed down two important decisions in ...

Equitable Distribution Law for Divorce in Maryland

Sharing property is an important component of many marriages, but when couples divorce, questions often arise as to how ...

What is the Division of Assets Divorce Law?

The sharing of property between spouses is a basic component of marriage. When the legal relationship between spouses ...

New Hampshire Law on Wedding Rings After Divorce

In New Hampshire, a spouse can seek either a no-fault divorce or a divorce based on the other spouse's fault. In either ...

Browse by category