How Are Assets Divided During a Divorce

When a new client sits down with our Raleigh divorce attorneys for the first time, one of their greatest concerns is how their belongings will be separated or if they will lose everything. It's certainly understandable - no one wants to start off a new future in an uncertain place or in financial distress. 

To help you better know what to expect, we are sharing some guidelines about how assets are divided during a contested divorce in North Carolina. 

Understanding Marital and Separate Property

First, we want to be clear that by "property," we mean both real estate - land, houses, or business holdings, and belongings - electronics, cars, jewelry, and furnishings. Before we look closely at property division, it's important to know about the three types of property considered in a divorce.  

Separate Property

Separate property is anything owned by a spouse before the marriage, anything gifted or left in an inheritance to once spouse by a third party, or post-separation earnings. For example, if a wife owns a car before she is married or a husband is left a motorcycle in his uncle's will, those are separate property and each person will keep those things in the divorce.

Marital Property

Marital property includes both property and debts acquired by both parties during the marriage. This includes investments and vested retirement funds between the date of marriage and the date of separation. It doesn't matter if one spouse works and the other is a homemaker, thus one person bought the property, if it was purchased during the marriage, it is considered joint or marital property. 

For example, a couple have purchased a house, own several rental properties, and each have 401K accounts with their employers that were both started after they got married. All of these are considered marital property and may be divided.

Divisible Property 

Divisible property  is anything that was acquired during marriage that gains or loses value post-separation. For example, if a couple bought a house and before they separated, it was worth $175,000 but during their separation, the worth goes up to $250,000, that added $75,000 is considered divisible. 

What Is Equitable Distribution in North Carolina?

North Carolina, along with 42 other states, determine property division along the lines of "equitable division." This means that a judge will divide property  fairly, not necessarily in a 50-50 equal divide. Certain factors will contribute to what makes it a fair split, including, but not limited to: 

• The duration of the marriage;
• Both spouses' health - A spouse in poor health may get the house or a larger amount of a joint savings account if he or she is unable to work and earn an income.
• If there are minor children and who has primary custody;
• Instances of domestic violence or abuse in the marriage;
• The role played in the marriage - A spouse who did not work outside the home but stayed home to raise children may not have the earning power of the other spouse after years of being a homemaker; 
• The ages of the spouses and whether both spouses have retirement funds;
• One spouse contributing to the education of the other, such as working to pay for their spouse's Master's degree so the spouse could earn a higher income. 

There are misconceptions that fault in the divorce, such as adultery, can tilt the property division. However, unless the misconduct or fault economically impacted the estate, it's not taken into account. 

Working With a Raleigh Divorce Attorney as a Mediator

Equitable division of property is only necessary when a divorce settlement is decided by a judge. Often, it may benefit both spouses to sit down and work out a settlement between them, with their divorce attorneys acting as mediators. This can be a less stressful, mutually beneficial way of divorcing and is often much less contentious than when the divorce moves to the litigation stage. 

Divorce in which both parties work out the terms with their attorneys outside a courtroom is often called a collaborative divorce. 

Receive a Fair Settlement with Our Raleigh Divorce Lawyers

If you're facing a divorce, and you are concerned about getting the property to which you're entitled or receiving a fair portion of your property, we can help. Our team of divorce attorneys in Raleigh will fight on your behalf to make sure your rights are protected and you get the best possible outcome.

To discuss your options and get the counsel and representation you need, reach out to us today at  (919) 296-1906 or complete the form below.