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Divorce, property division and North Carolina law: FAQs

Ending a marriage is a complex process. In addition to dealing with the emotional aspects, legal issues must also be addressed. Those who are going through or considering this process likely have a number of questions, some of the more common are listed below.

How is property division determined in North Carolina? North Carolina is an equitable distribution state. State law guides the process, noting the court is instructed to divide marital property in half. If the court determines that an equal division is not equitable, the court will do its best to ensure that the split is fair.

In order to determine what would be fair, the court considers a number of factors. These factors include:

  • Current standing. The court will consider the current income and liabilities as well as the age and health of each spouse at the time the division would be effective.
  • Marriage. The marriage itself will also be reviewed. The court will look at things like the length of the marriage and any contribution one spouse made to the other's career development or education.
  • The interim. The court will also look at how each party treated marital property during the separation. It will look at whether a party wasted marital assets or worked to preserve or build them.

These are just a few of the many factors the court will consider.

What is marital property? Before moving forward with splitting the property, it is important to understand how the state defines marital property. Essentially, this term means all property gained during the marriage. This includes retirement accounts.

Not all property accumulated during the marriage qualifies, there are some exceptions. Property that is given to one party as a gift or inheritance may be considered separate. However, this generally only holds true if the asset was kept separate from other forms of marital property. This means that the inheritance, for example, would generally lose its separate status if it was put into a joint savings account.

What about premarital agreements? State law does support the use of prenuptial agreements. More specifically, the law states:

[B]efore, during or after marriage the parties may by written agreement, duly executed and acknowledged in accordance with the provisions of G.S. 52-10 and 52-10.1, or by written agreement valid in the jurisdiction where executed, provide for distribution of the marital property or divisible property, or both, in a manner deemed by the parties to be equitable and the agreement shall be binding on the parties.

This means that as long as the prenup is put together fairly and meets the requirements of state law, the court will likely honor the agreement. It also means that agreements can be made during the marriage or that the couple can develop their own divorce settlement agreement.

Do I need a lawyer? In many cases, the answer is yes. Although property division is difficult, it is just one of many issues covered during divorce. Additional issues can include child custody, child support and spousal support or alimony.

Also, the laws governing this process can change. As a result, it is often wise to seek the counsel of an experienced family lawyer to help better ensure your interests are protected.

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