Rebecca Perry

FAMILY LAW

 

Property Division

All property that is acquired during marriage by one or both spouses (except property acquired by gift or inheritance to only one party), and owned on the date of separation, may be subject to the equitable distribution.  "Property" includes both assets and debts.  All assets and debts acquired during the marriage, and owned on the date of separation, are valued as of the date of separation in North Carolina for purposes of calculating the net value of the marital estate. Equitable distribution cases require the parties to provide an inventory of property owned as of the date of separation.  Each item must be characterized as marital or separate, valued and finally distributed.  An equal (50/50) division of the marital property is presumed to be equitable, unless after considering the statutory factors, the court determines that the 50/50 division would not be equitable.  The factors that the court may consider in deciding whether to award an unequal division of property are:

      (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 nonliquid 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.

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