Often the most frequently asked question about property division during a divorce is what property the other spouse is entitled to receive. In most cases, that question is not so easily answered. In North Carolina, once parties separate, the division of property, usually referred to as equitable distribution, begins with spouses identifying all property owned as of the date of separation. Once all property is identified it will then need to be classified as either marital or separate property.
Making a determination as to what property is marital and subject to division during a divorce and can be a complex inquiry that can be managed best with the assistance of a knowledgeable family law attorney.
How to Identify Marital Property
In North Carolina “marital property” is defined in §50-20(b)(1) of the North Carolina General Statutes as all real property and personal property that was acquired by either, or both spouses during a marriage, and owned at the date of separation, except any separate or divisible property. And will include all assets and debts acquired during the marriage, such as:
- Real property;
- Personal property;
- Any vested and unvested pension benefits;
- All other deferred compensation benefits; and
- Any cash value accumulated in insurance policies.
What is Separate Property?
All property owned at the date of separation between the parties is generally presumed to be marital, however, separate property of either spouse is not marital and not subject to division. Separate property will consist of assets that were acquired before marriage, or through inheritance or gift during the marriage. However, gifts between spouses during the marriage are still considered marital property unless there is intention in the conveyance stating otherwise. The party claiming any separate property has the burden of proving said property is separate.
Determining the proper classification of property during a divorce is critical. One misstep in the identification process can have long-lasting consequences. Even those with simple estates often run into problems when having to classify property such as businesses, pensions, intellectual property, stocks, and other commingled assets. Additionally, in instances where there is a valid prenuptial or postnuptial agreement, determining what property is marital and should be divided can be a tough undertaking in an already difficult situation.
The family law attorneys at Hopper Cummings are experienced in all facets of property division and can help you overcome obstacles in your case while working toward a successful and lasting resolution. We are skilled negotiators and creative problem solvers, and in situations where compromise cannot be reached, we are experienced trial lawyers. For a confidential consultation regarding your divorce and property settlement concerns, contact us at 919-533-4115, or complete our online form.
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