Property distribution in North Carolina is referred to as Equitable Distribution. It is important to remember that in North Carolina you must have a claim for equitable distribution pending on the date the absolute divorce is granted or your rights to an equitable distribution of your property are deemed waived.
There are three types of property, which are involved, in the Equitable Distribution Process: Separate Property, Marital Property and Divisible Property.
- Separate property includes all property owned by either spouse before the marriage, property acquired during the marriage by one spouse by inheritance or gift from a third party, and property acquired after the date of separation with post-separation earnings. A gift from one spouse to the other during the marriage is marital property unless the donor states at the time of the conveyance that it is intended to be separate property.
- Marital Property includes all property presently owned that was acquired during the marriage except property determined to be separate property. "Marital property" includes all vested pension and retirement benefits.
- Divisible Property is defined as real and personal property that also includes the appreciation and decrease in value of marital property acquired as a result of actions of the parties during the marriage but before separation. Passive income from marital property received after separation and increases in marital debt including finance charges and interest related to marital debt is subject to division by the Court.
Normally an equal division of Marital Property is considered to be fair and equitable. There are multiple factors the court must consider in deciding whether an equal division is appropriate. These factors include, but are not limited to: income, property and debts of a party, support obligations from prior marriages, length of marriage and age and health of each party, needs of custodial spouse to own or to possess the marital home and household effects, and expectation of retirement benefits which are separate property.
Separate Property is kept by the spouse who owned it prior to marriage while marital property will be divided between the parties by the court. There is no a precise formula for dividing the property, but there is a strong tendency in North Carolina to divide the property equally.
Marital misconduct such as adultery is NOT considered in the settlement of property rights as it is in an action for Alimony and Post Separation Support.