After a separation or divorce in North Carolina, the individuals have to divide up property and assets. While this is generally about property, certain property has major sentimental or emotional value for spouses, children, and other family members. Ideally, the separating couple can agree on how to divide property but some asset division is not so clear. When the spouses cannot agree on property division, the court may settle disputes, even if the solution is not in either parties best interest.
An experienced North Carolina family law attorney can help you keep your most important possessions, identify any hidden assets, and make sure you get what you are owed after a separation.
Equitable Property in Gaston County
Different states have different approaches to identifying and dividing property in a divorce. North Carolina is an “equitable distribution” state. Under the equitable distribution standard, marital and shared property is generally divided equally. However, the court can modify the 50-50 split in a way that would be equitable, or fair to both parties, in the eyes of the court.
Property Classification in North Carolina
In dividing property and assets, the property first has to be classified. This is not always clear as the parties may dispute whether property was marital or separate, such as whether a gift was given to one spouse or to the couple. Property is generally classified as:
- Marital property
- Separate property
- Divisible property
Marital property: Marital property refers to all assets, property, and possessions that are acquired by the spouses during a marriage. Examples would include furniture, income from working, or the money in a joint bank account.
Separate property: Separate property generally refers to any property or assets each spouse individually owned or possessed before the marriage. This also includes property received during the marriage in the form of a gift or inheritance to one spouse.
Divisible property: Divisible property is generally assets that either appreciate or depreciate in value after the separation. Divisible property could include land, the family home, or stock investments.
Property Division Process in Gaston County
After property, assets, and debts are identified, the property will be divided. The couple can come to an agreement on dividing assets and property and avoid having the court make the decision. If the divorcing couple cannot come to an agreement, the court may decide how to divide their assets.
Separate property generally remains the property of the individual spouse. Shared property will be divided, distributed to one spouse or the other, or sold with proceeds being divided. The court may aim for a 50/50 split; however, dividing certain assets like vehicles, the family home, or property can be more difficult to agree on how they should be distributed.
Factors in determining equitable distribution in North Carolina may include:
- The income, individual property, and individual liabilities of each party at the time of separation;
- Support obligation for a prior marriage;
- The duration of the marriage;
- The physical and mental health of both spouses;
- The needs of a parent with custody of a child or children to occupy the marital residence;
- Reasonable expectations of a pension or retirement that is not considered marital property;
- Direct or indirect contributions made by one spouse to help the career potential of another spouse;
- Direct or indirect contribution to an increase in value of separate property that occurs during the course of marriage; or
- Any other relevant factors.
Premarital and Prenuptial Agreements in Gaston County
Premarital and prenuptial agreements may affect how property is divided in a divorce. While North Carolina law requires equitable distribution, the parties can make a contract affecting their property rights before they get married. A prenuptial agreement, also called a “prenup,” is an agreement the couple signs before marriage and can describe property and asset treatment, including:
- How property, income, expenses, and debts will be divided if the couple eventually separates,
- The amount and duration of alimony or spousal support,
- Which assets are considered shared and which are separate, and
- Waiver of certain property rights.
A prenuptial agreement can be helpful in the event of a divorce because a proper agreement should spell out how the assets, property, and debts will be divided.
However, a spouse may feel like the prenuptial agreements is not fair or the spouse was never able to negotiate the terms of the prenup. Generally, prenuptial agreements are legal and enforceable. However, in some situations, the agreement can be found unenforceable if it was unconscionable, signed under duress, the agreement enforces illegal actions, or the agreement involved fraud.
For example, Wayne and Wendy are planning to get married. Wayne ordered champagne to celebrate their engagement with Wayne continuing to pour the wine and drinking little himself. Wendy later passed out at home. They got married and 5 years later divorced. Wayne showed Wendy the prenup she signed on the night of their engagement which Wendy was not aware of. The prenup may not be enforceable if Wendy did not have the mental capacity to enter into the agreement.
Hidden Assets and Bank Accounts in North Carolina Divorce
Unfortunately, it is not uncommon for a spouse to have hidden assets, unreported income, and undisclosed accounts. This can be more common when one spouse has been considering divorce for some time or where a spouse is carrying on an affair. The spouse may have been dividing up income into a separate account to hide expenses related to an extramarital affair, including paying for travel, hotels, or gifts.
Even if you do not believe your former spouse may be keeping separate accounts, you should talk to your attorney about searching for hidden assets or unreported property. Your experienced attorney will be able to investigate any other financial holdings, bank and credit card accounts, and engage experts to identify suspicious financial activity or bookkeeping.
Ways to identify hidden assets may include:
- Income tax returns,
- Bank statements and canceled checks,
- Business records,
- Credit reports, and
- Insurance statements.
How Does Property Division Affect Alimony in North Carolina Divorce Cases?
Property division and distribution of assets can affect the amount and decision of an alimony award. However, asset distribution on separation or divorce is only one of many factors in determining spousal support in North Carolina.
Under North Carolina statutes (NCGS 50-16.3A), courts are required to consider 16 factors that are meant to influence its decision, including the following factors:
- Contributions to the earning power of the other spouse,
- Relative earnings and other earning capacities of the parties,
- Total amount of earned and unearned income of both parties,
- Assets and liabilities of parties,
- Property brought to the marriage by both parties,
- Individual and marital debt accrued by the parties, and
- Previous determination of the distribution of assets.
Generally, in going through a divorce, the spouses should consider all the major changes that will occur together, not necessarily as stand-alone issues, including:
- Child custody,
- Child support,
- Alimony or spousal support, and
- Property division.
Gaston County Family Court
Most divorce and separation property disputes and asset divisions are handled at the Gaston County Courthouse in Gastonia. The Gaston County Family Court is located at:
325 Dr. Martin Luther King Jr. Way
Gastonia, NC 28052
Hours of Operation:
Monday to Friday: 8:30 am to 5:00 pm
The Gaston County Courthouse has a parking lot just off Dr. Martin Luther King Jr. Way, north of Long Avenue in Gastonia. The courthouse has paid parking spaces for the public but there may also be free parking available one block north at West Walnut Avenue and Dr. Martin Luther King Jr. Way.
Property Division Representation in Gaston County Divorces
After years of marriage, it can be difficult to divide up property and split assets, especially when the parties disagree. Spouses going through a separation or divorce can benefit from the experienced legal advice that the skilled attorneys at Caulder & Valentine have to offer. We are here to help you protect your assets, and get your rightful property in a Gaston County divorce. Contact us today for a consultation.