How Are Assets Divided In a Divorce?

Dividing assets during a divorce can be a contentious issue. Each spouse wants their fair share of the marital assets. However, the spouses might believe they are entitled to a larger portion of the marital property. A North Carolina family law attorney can help you fight for your fair share of assets during a divorce. A fair property settlement can give you the necessary resources as you transition back to single life.

You Must Determine What Property Is Subject to Division During a Divorce

Either spouse can file a lawsuit to determine what property is subject to division during a divorce. The North Carolina statutes define three types of property:

Separate Property 

Separate property includes any property belonging to a spouse before marriage or received while they are married through inheritance or gift. However, gifts from your spouse during your marriage are only separate property if the intent to keep the property as separate property is stated in the conveyance. 

Marital Property 

Marital property is personal and real property acquired by either spouse or both spouses during the marriage and before the parties’ separation date, except property determined to be separate property. There is a rebuttable presumption that all property acquired between the marriage and separation dates is marital property. 

Divisible Property 

Divisible property is acquired after the parties separate and includes:

  • Increases and decreases in the value of marital property that accrued after the parties separated except for increased or decreases as the result of a spouse’s actions post-separation;
  • Property received during the separation that was the result of a spouse’s efforts during the marriage and before separation;
  • Passive income received from marital property; and,
  • Passive increases or decreases in marital debt, including financing charges and interest

Divisible property can include commissions and bonus income that a spouse earned during the marriage but did not receive until after they separated from their spouse. It is crucial to keep detailed records during separation to prove or refute whether an asset could be included in divisible property. 

How Does a North Carolina Judge Divide Property During a Divorce?

North Carolina is an equitable distribution state for marital assets and divisible property. Separate property is not included in equitable division of assets during a divorce.

An equitable division of property does not always equal a 50-50 split. The court decides what would be a fair allocation of property based on several factors. Therefore, the court could decide it is fair for spouses to split marital assets and divisible property 70-30 or 60-40. 

The court begins with the presumption that an even distribution of assets is equitable. However, the court then considers all relevant factors to determine if an equal distribution is fair. Factors judges consider when dividing assets during a divorce include, but are not limited to:

  • The duration of the marriage
  • The assets, income, and property of each spouse
  • The age and health of each spouse
  • The earning potential of each party
  • The relative needs of both spouses
  • The liabilities and debts of each party, including spousal support and child support obligations from prior relationships
  • The standard of living the spouses enjoyed during the marriage
  • Sacrifices and contributions made by a spouse to build marital assets
  • Anticipated retirement benefits for each spouse
  • The efforts a spouse made to support the education and career of the other spouse
  • The contributions of a spouse as the primary caregiver for the children and as a homemaker
  • Tax implications of transferring assets, including liquidating or transferring funds from retirement accounts
  • A spouse’s conduct that resulted in the waste or loss of marital property

Spouses can negotiate a property settlement agreement instead of allowing the court to divide marital assets. Because they cannot predict what a judge might decide, many parties decide to negotiate a favorable agreement with the help of their divorce lawyers. 

Schedule a Consultation With a North Carolina Divorce Attorney

Do you have questions about dividing assets with your ex-spouse? If so, our legal team at Patrick Harper & Dixon, LLP can help. Contact us now for a consultation with a North Carolina divorce attorney.