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Equitable Distribution: Are You Entitled To More Than 50%?

| Aug 20, 2021 | Equitable Distribution

In North Carolina, couples who are separating may apply to our courts to divide their marital assets and debts. The court is required to distribute or divide the property in an equitable, or fair, manner, generally giving each spouse some of the marital property. This process is called “equitable distribution.” The overarching goal of equitable distribution, or the process of dividing marital assets between the spouses, is to make it fair to each party. Under North Carolina law, what is “equitable” or fair, is presumed to be an “equal” division between the spouses. Our statutes provide that there “shall” be an “equal” division of the net marital estate unless the court determines that an equal, 50/50 division “is not equitable.” While it can sound like the court is chasing its tail, the idea is that the court wants the division of assets to be fair, will assume a 50/50 division is fair and divide the marital assets in that manner, unless a party informs the court that a 50/50 division is in fact not fair. To equitably distribute the property, it is necessary for the court to identify the marital property and value it. Marital property is property that is acquired from the date of marriage to the date of separation. Once the court determines or classifies the property as marital, it then values it. If one party asserts that an equal division is not fair and equitable, the court then turns to a list of twelve factors it may consider to determine what a “fair” and “equitable” distribution would be. The court has discretion to award an unequal distribution of the marital property and can do so based solely on one of the twelve factors.

Factors for an Unequal Division The party seeking a greater than equal share of the marital assets bears the burden of proving that an unequal division would be equitable with respect to the twelve factors listed under N.C. Gen. Stat. § 50-20(c). The twelve factors the court considers are”

1. The income, property, and liabilities of each party at date of separation;2. Any support obligation arising from the marriage;3. The duration of the marriage, and age and health of the parties;4. The need of a custodial parent to retain the home;5. The parties’ retirement assets which are separate;6. Any contributions made to acquiring property;7. Any contribution made by one spouse to the career of the other;8. Any contribution to increase the value of separate property;9. The liquid or nonliquid nature of the property;10. The difficulty in assessing value of any property, such as a business;11. The tax consequences; and12. Any other factor the court finds just and proper.

What About Marital Misconduct? The only marital misconduct considered by a court in dividing marital assets is financial misconduct, such as reckless spending of marital assets. Actions such as adultery or domestic violence are not considered in equitable distribution unless they have a financial component such as spending funds on a paramour.

Why Do You Need an Attorney in an Equitable Distribution Case Judges are provided with wide discretion for how much weight to give each factor presented to them when they are making a final determination for property distribution. Even with supporting evidence as to why an award greater than 50% of the marital estate to you is fair, it still may not be enough to persuade a judge to grant your request. Retaining an experienced family law attorney to represent you in your equitable distribution matter is important. Daphne Edwards and her team can help ensure that you receive a fair and equitable share of your marital property whether that is equal or not. If you have questions or concerns about equitable distribution call our office for a consultation at 919-891-8552.This article is for information purposes only and is not to be considered or substituted as legal advice. The information in this article is based on North Carolina state laws in effect at the time of posting.