You picked out a beautiful house with your spouse to raise your family together. You watched your children grow up in that house and built countless memories. Now, you find you may have to sell your home because you are getting a divorce. What will happen to all of your stuff? Who decides what you get to keep? Will you have to fight with your spouse over who gets the dishtowels? Will you have enough retirement?
Dividing your property during a divorce can be complicated and difficult. Reaching an agreement with your spouse as to division of property can save you time, stress, and legal fees. Although, if you are unable to come to an agreement out of court, a judge will divide the property owned by you and your spouse. In North Carolina, the division of property owned during a marriage is called making an “equitable distribution” of the property.
Equitable Distribution is a very complex area of law which contains a minefield of exceptions and a complex analysis. At Conrad Trosch & Kemmy, our experienced family law attorneys have decades of experience with equitable distribution and can effectively and efficiently guide you through the process. Generally speaking, Equitable Distribution uses a three-step process to determine the spouses’ rights to assets and liabilities:
- Classify the assets as marital, separate or divisible;
- Value the assets as of the date of separation as well as when the assets are distributed;
- Equitably divide the assets.
Under the first step, property owned by you and your spouse is classified by the court as either “marital” property or “separate property.” “Marital” property includes all property currently owned that was acquired by either spouse or both spouses during the marriage, regardless of who is the titled owner, and before the date-of-separation, unless the property was inherited or received as a gift by one spouse. “Separate” property, on the other hand, includes all property owned by either spouse before the marriage, or property acquired during the marriage by one spouse through inheritance, by gift or the use of other separate property. Generally, “separate” property will be kept by the spouse who owns it and “marital” property will be divided between the two parties.
The second step of equitable distribution is to value your property. The property will be valued at the fair market value as of the date of separation and then again when it is to be distributed. The fair market value is how much the property would be sold for to a willing buyer. The value of some assets, such as bank accounts, are usually not disputed. The value of other assets, such as homes or personal property, are more likely to be disputed. In the event of a dispute, your case may proceed to trial. In such cases, it may be necessary to have an appraiser value your property and appear at trial to give testimony regarding the value of the assets.
Finally, once your property has been classified and valued, it must then be equitably divided. North Carolina law provides for an equitable or fair according to the State of North Carolina, but not necessarily equal, division of the property and debts acquired during your marriage. North Carolina does presume that equal is equitable unless one of several factors would require an unequal division of property. The main factors considered relate to your relative financial situations such as your debts, your incomes, your separate estates, the length of your marriage, your circumstances and those of your spouse, and the history of your contributions to the marriage.
The process of dividing your hard-earned property can be difficult and stressful. Classifying, valuing, and dividing your property requires the help of experienced lawyers. At Conrad Trosch & Kemmy, we work vigorously to ascertain realistic values of property in order to ensure fair outcomes for our clients.