PROPERTY DIVISION
OTHERWISE KNOWN AS
EQUITABLE DISTRIBUTION

Property division is known as equitable distribution ("ED"). ED can be one of the most frustrating aspects of a divorce, especially in a long term marriage, a short marriage with a lot of debt, or an unreasonable spouse who holds your property hostage. Below is an overview of the subject:
EQUAL V. UNEQUAL
  Most courts will distribute property equally between the parties. There are some circumstances that warrant an unequal division of property. In my experience, it is difficult to obtain an unequal distribution of property without some type of "marital waste" or a serious medical condition by one party. For example, if a Husband hid $10,000.00 in a safety deposit box shortly before separation and did not disclose this to his Wife, Wife would most likely be granted an unequal distribution of property.
SEPARATE PROPERTY
  Separate property is yours and you don't have to share. If you bought it before the marriage and paid for it in FULL, it is yours. If you were given it as a gift, it is yours (unless your spouse gave it to you). If you inherited it, it is yours. If your spouse refuses to return your separate property, you can be reimbursed for attorney fees if it goes to court.
MARITAL PROPERTY
  If it was bought during the marriage with money made during the marriage (regardless of whose paycheck purchased it) it is marital money. If you started a retirement account during the marriage, it is marital property.
MARITAL DEBTS
  If you acquired the debt during the marriage for the BENEFIT of the marriage, it is considered a marital debt. If you own an Express Credit Card and buy clothes for yourself, it is separate debt.
CIRCUMSTANCES FOR AN UNEQUAL DIVISION
  (1) The income, property, and liabilities of each party at the time the division of property is to become effective.

(2) Any obligation for support arising out of a prior marriage.

(3) The duration of the marriage and the age and physical and mental health of both parties.

(4) The need of a parent with custody of a child or children of the marriage to occupy or own the marital residence and to use or own its household effects.

(5) The expectation of pension, retirement, or other deferred compensation rights that are not marital property.

(6) Any equitable claim to, interest in, or direct or indirect contribution made to the acquisition of such marital property by the party not having title, including joint efforts or expenditures and contributions and services, or lack thereof, as a spouse, parent, wage earner or homemaker.

(7) Any direct or indirect contribution made by one spouse to help educate or develop
the career potential of the other spouse.

(8) Any direct contribution to an increase in value of separate property which occurs during the course of the marriage.

(9) The liquid or non liquid character of all marital property and divisible property.

(10) The difficulty of evaluating any component asset or any interest in a business, corporation or profession, and the economic desirability of retaining such asset or interest, intact and free from any claim or interference by the other party.

(11) The tax consequences to each party.

(11a) Acts of either party to maintain, preserve, develop, or expand; or to waste, neglect, devalue or convert the marital property or divisible property, or both, during the period after separation of the parties and before the time of distribution.

(11b) In the event of the death of either party prior to the entry of any order for the distribution of property made pursuant to this subsection:

 

 

 

a. Property passing to the surviving spouse by will or through intestacy due to the death of a spouse.

b. Property held as tenants by the entirety or as joint tenants with rights of survivorship passing to the surviving spouse due to the death of a spouse.

c. Property passing to the surviving spouse from life insurance, individual retirement accounts, pension or profit-sharing plans, any private or governmental retirement plan or annuity of which the decedent controlled the designation of beneficiary (excluding any benefits under the federal social security system), or any other retirement accounts or contracts, due to the death of a spouse.

d. The surviving spouse's right to claim an "elective share", pursuant to G.S. 30-3.1 through G.S. 30-33, unless otherwise waived.




(12) Any other factor which the court finds to be just and proper.
  How does ED work?
 
ITEM
 WIFE GETS TO KEEP
 HUSBAND GETS TO KEEP
Marital Home
 $250,000.00
  
Mortgage
 ($222,000.00)
  
Sears Credit Card
(New Washing Machine)
   ($1,000.00)
Visa
   ($5,000.00)
Furniture
 $5,000.00
 $5,000.00
401K
   $120,000.00
Honda Civic
   $1,000.00
Ford SUV
 $2,500.00
  
TOTAL NET VALUE
 $35,500.00
 $120,000.00
Now that the property and debts have been distributed, what is the bottom line?
 
NET MARITAL ESTATE
 $155,000.00
HUSBAND'S NET ASSETS
 $120,000.00
WIFE'S NET ASSETS
 $35,500.00
EACH PERSON SHOULD HAVE
 $77,750.00
HUSBAND NEEDS TO PAY WIFE
 $42,250.00


Tips to survive ED:
  1. The day you separate, pull your credit report. You can get one for free at www.annualcreditreport.com

2. Take pictures of everything you have as soon as you can. It's interesting how many things "disappear" when you separate.

3. When you separate, take everything that you want and worry about the distribution later. It may be months before you get the opportunity to recover additional items. DO NOT take things you don't want out of spite. You could get
stuck keeping the $300.00 collection of beer mugs. This means it will be placed on your side of the column!

4. Make photocopies of every financial statement you can. It is especially important to have a copy of all retirement accounts. DO NOT keep your photocopies at home, your spouse may take it.

5. Find out the value of all vehicles the day you separate. Go to www.kellybluebook.com on the date of separation and print out your vehicle's value.

6. If you don't pay the bills, start being nosey. There is no excuse for not knowing your family's financial situation.

7. Make a notebook that reflects documentation of all debts and assets in your marriage. Include pictures of furniture, copies of bank statements and bills...etc. Do NOT keep it in a place where your spouse will find it. Keep it at work or at a trusted family/friend's home.

8. Open your own bank account TODAY. Imagine the worst, your spouse drains your joint account and leaves you penniless for months. This happens frequently.

9. The more organized you are, the less money you will pay your attorney!