Equitable Distribution

Equitable Distribution in Wake County

You and your spouse have likely accumulated property and assets and debts (mortgage, credit card, car note) during your marriage. Now that the marriage is coming to an end, you’ll have to divide the property as part of the divorce settlement. Equitable distribution reflects the idea that marriage is a partnership enterprise to which both spouses make vital contributions. White v. White, 1985. The goal of equitable distribution is to allocate to divorcing spouses their share of the assets accumulated by the marital partnership. The heart of the theory is that both spouses contribute to the economic circumstances of a marriage, either directly by employment or indirectly by providing services at home. Smith v. Smith, 1985. Our equitable distribution attorneys can help you divide your property, either through negotiated settlement or litigation. We will discuss all the factors that can impact how a Wake County court might divide the marital estate. Some factors include:

• Duration of marriage
• Health and age of both spouses
• Actions taken to waste or preserve asset

Types Of Property

The court considers three types of property when dividing assets during divorce proceedings. First, there is separate property. This refers to the property you owned when you entered the marriage, as well as inheritances and gifts from third parties you received during the marriage. Also, separate property includes anything you acquired with your personal funds after separating.

Marital property refers to the property you acquired while married, as long as it isn’t a gift or inheritance. Gifts from one spouse to another count as marital property, though. The only exception is if the gift giver states that it’s separate property.

Divisible property refers to the increases and decreases in the marital property after the separation. In addition, any passive income earned from the marital property after you separate is counted as divisible property. The court will value your divisible property during your divorce trial.

The Three-Step Process

In making an equitable distribution of property, the trial court follows a three step process, whereby it determines which property is marital and divisible property, calculates the net value of the property, and distributes the property in an equitable manner. Brackney v. Brackney, 2009. In Wake County our local court rules require both parties to complete specific financial disclosure documents and serve extensive financial information on the opposing party. You can find the Wake County Local Rules at www.nccourts.gov. Our attorneys have years of experience assisting clients with this often burdensome and complicated task. A party failing to participate in the financial disclosure process is subject to sanctions by the court, and may have their ability to put on evidence severely limited at an equitable distribution trial. N.C. Gen. Stat. 1A-1, Rules 26, 33, and 37; N.C. Gen. Stat. 50-21.

Avoid Litigation With A Separation Agreement

If you and your spouse don’t want to be bound by the equitable distribution laws or simply wish to avoid court, our attorneys can draft a separation agreement for you. McKnight Law can  help you divide property (and determine alimony, child support, child custody, and more) with a Separation Agreement. Many people choose to at least try this option, because it might allow them to avoid a courtroom and spend many months (sometimes years) litigating. Also, both sides are theoretically more likely to be relatively satisfied with the outcome when they negotiate.

Motion For Equitable Distribution And Injunctive Relief

Are you concerned that your spouse is converting or destroying marital property to prevent you from receiving an equitable share? If so, you can file a motion for equitable distribution. An injunction may be requested to prevent the disappearance, waste, or conversion of property alleged to be marital property, divisible property, or the separate property of the party seeking an injunction. N.C. Gen. Stat. 50-20(i).

Equitable Distribution in North Carolina can be a complicated process requiring an attention to detail and a depth of experience. We have been litigating in Wake County and beyond since 2004 – Call Us and let us help.

Why McKnight Law?

John McKnight, our owner and founding partner, has been litigating in North Carolina District and Superior Courts since graduating from the Wake Forest university school of law in 2004. John has been inducted into the North Carolina Pro Bono Honor Society for his contributions to the people of the state, and he has personally trained the other lawyers here at McKnight Law, each of whom has many years of litigation experience. We are all members of both the Wake County Bar Association and the North Carolina Bar Association. Our attorneys are routinely recognized by Super Lawyers and Best Lawyers in America, and we have been selected by Best Law Firms in America as elite family law practitioners. All our lawyers are active in the community and contributing members to the field of law in North Carolina.

Contact us today and let us show you how we can help.