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How will my property be divided in a divorce?

Of all the issues that must be resolved during a divorce, the one that can rapidly become the most complex -- and even the most contentious -- is property division. That's because people not only have the tendency to attach sentimental value to certain property (i.e., the family home), but also to believe that certain property rightfully belongs to them regardless of what the law has to say.

While this is perhaps understandable given how emotionally charged the divorce process can prove to be, it's nevertheless important for divorcing couples to understand that strong emotions notwithstanding, they will be bound by the court's purely objective decisions regarding property division.

What happens if a couple can't reach an agreement on property division?

If a couple here in North Carolina can't decide on how to divide their assets and debts, a court will decide for them in accordance with the principles of equitable distribution.

What is equitable distribution?

Equitable distribution is a system of property division whereby a court will seek to divide property in a matter that is fair in light of the circumstances.

This means that the court will start with the presumption that property should be divided 50-50 and, after considering a host of factors, decide whether such an arrangement would prove inequitable (i.e., unfair) to the one of the spouses. If so, it will adjust accordingly.

What type of property is subject to equitable division?

The law in North Carolina recognizes three separate types of property in divorce cases: marital property, divisible property and separate property. This distinction is significant, as only marital property and divisible property are subject to equitable division. Indeed, each spouse retains his or her separate property.

We'll continue this discussion in our next post, examining the differences between marital, divisible and separate property, and the factors considered by courts when dividing property.

Whether you are debating filing for divorce or have already been served with papers, consider speaking with an experienced legal professional to learn more about your options.