The division of marital property is usually one of the most contentious issues in a divorce, which is why it frequently falls to a judge to determine who gets what. The legal process of property division, which is sometimes called “equitable distribution,” is the process by which the trial court assesses and divides the marital or divisible property of spouses.
It’s important to note that the term “equitable distribution” should not be confused with “equal” distribution — “equitable” means “fair in the eyes of the court,” which can be very different than simply splitting up property evenly. Since the court sometimes has a great deal of discretion over which spouse gets which assets, it’s important to protect your interests during a divorce by hiring an experienced family law attorney. At Myers Law Firm, we have years of experience supporting and advocating for clients through every step in the divorce process, and we’ll spare no effort in fighting to defend your legal rights and property in court when you choose us to represent you.
The Three Types of Property Classifications
During the process of property division, the court will classify all of the spouses’ property into one of three different categories: marital property, divisible property, and separate property.
- Marital property is all the real and personal property acquired by either spouse from the date of marriage through the date of separation, excluding separate property. Marital property generally includes:
- Money earned by either spouse during the marriage
- Retirement accounts
- Cars and other vehicles
- Any other property that is owned on the date of separation
North Carolina law presumes that any property acquired after the date of marriage but before the date of separation is marital property, which means it typically does not matter if the property or debt is only listed in the name of one spouse. The presumption of marital property can be rebutted in court, however, and does not apply to separate property.
- Separate property is any real or personal property that a spouse owned prior to marriage, or property that was acquired during the marriage by only one spouse through inheritance or as a gift. Additionally, professional or business licenses belonging to a spouse are separate property.
- Divisible property is any property that was earned before the date of separation but is actually received or changes in value after the date of separation. The classification of divisible property is necessary because there is always a period of time that passes between the date of separation and the date of property distribution by the trial court.
In general, a judge can decide on the distribution of marital and divisible property between the spouses but can’t distribute separate property, as it belongs to only one party.
What to Expect During Property Division
The process of property division can be a lengthy one, and it consists of four main steps:
- Identification of property is the first step in the process. Generally speaking, identification of property is fairly straightforward and involves cataloging all the property that is “presently owned” under the law by the spouses. The next step, classification of property, involves determining whether property is marital, separate, or divisible. The classification of property can be extremely important because the court has significant power to distribute marital or divisible property.
- Next comes the valuation of property step, which is important in determining how the trial court can equitably divide any marital or divisible property. The trial court must determine, based on evidence presented at the trial, the net fair market value of the property: the price a willing buyer on the street would pay a willing seller minus the value of any debts associated with the property.
- As the final step, the court must go about dividing the property between the spouses in an equitable manner. North Carolina law operates on the presumption that an equal division (“fifty-fifty” between the spouses) is equitable. However, either spouse can present evidence at trial to rebut that presumption and get an unequal division.
Myers Law Firm Can Help You Protect Your Assets during Divorce
The family law attorneys at Myers Law Firm are ready to act as your advocates and protect your rights when dividing up property during a divorce. We have experience handling every aspect of property division cases and an intimate knowledge of local courts, and we won’t hesitate to pursue your case aggressively and fight on your behalf in court if necessary.
To schedule your initial consultation, please call our Charlotte office toll-free at 1-888-376-ATTY (2889) or contact us using our online contact form.