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Removing marital property before divorce is not a good idea. In North Carolina, the law doesn’t split marital assets down the middle. Instead, they are distributed equitably according to each spouse’s circumstances. So what does this mean for you? Let’s take a look at how NC law determines the equitable distribution of assets.

What is Marital Property in North Carolina?

In North Carolina, marital property is any asset acquired by either spouse during marriage. Marital property includes income, savings, houses, cars, furniture, and anything else of value.

The court presumes that all property acquired during the marriage is marital property, regardless of how it is titled. Even if an asset is only in one spouse’s name, it may still be considered marital property and subject to equitable distribution in a divorce.

Debts incurred during the marriage are also marital property. However, there are some items that you may own as separate property. So let’s look at what belongs to you alone in a marriage.

What is Separate Property in North Carolina?

Separate property is anything:

  • Owned by either spouse before the marriage
  • Given to only one spouse during the marriage
  • Inherited by only one spouse during the marriage (1)

For example, if your spouse’s sister gave her an expensive set of antique collectibles, they would belong only to her.

Gifts and inheritances are also separate if given to only one spouse. If your husband inherited a hunting cabin from his father and the deed is only in his name, the place belongs to him alone.

When considering the equitable distribution of assets, separate property does not count. The property you own before the marriage or as a gift to you alone during the marriage is yours. Separate property is free and clear of the divorce asset split.

Look at the date of acquisition to determine marital property vs. separate property: the date you bought or acquired the asset as a gift.  If you’re not sure about the date of acquisition, your family law attorney can help you determine this information.

How is Marital Property Divided in NC?

In North Carolina, you and your spouse may agree to divide assets in any way you choose. If you work out an agreement with your spouse about the distribution of property, the divorce judge will sign off on your divorce using the deal you’ve made together.

However, if you disagree on the distribution of your assets, you’ll end up before the judge needing the court to divide your interests. A judge will often split your combined property 50/50.

However, in some situations, equitable distribution will not mean a 50/50 split. For example, if one spouse contributed more to the acquisition of a particular asset, that spouse may receive a more significant share of that specific asset. Other factors can come into play as well when deciding how to divide assets in an equitable way.

If you’re considering removing assets before filing for divorce, working with an experienced family law attorney who can protect your interests is essential.

What Does Equitable Distribution of Assets Mean?

The court may consider many factors before deciding what an equitable distribution of assets means in your case. A judge may look at the following:

  • Income of both spouses
  • Property
  • Length of the marriage
  • Debts
  • Child or spousal support obligations from a previous marriage
  • Who pays for the family home mortgage or rent
  • Who lives in the home
  • How much spouses worked during the marriage
  • Contributions by one spouse to the other’s education
  • Retirement accounts, life insurance accounts

Whether one spouse is more at fault for causing the divorce does not affect the distribution of assets unless they caused a loss of a significant amount of your total estate by their behavior.

Removing Marital Property Before Divorce

Some people mistakenly believe that removing marital property before divorce is a good way to keep the items off the table while dividing property. Unfortunately, this is not the case. In fact, removing assets before a divorce can hurt you in the long run, especially if the other spouse can prove you took it without consideration during the separation period.

For example, if you remove your spouse’s name from the deed to your family home before filing for divorce, the court may view this as an attempt to keep that property for yourself. The same goes for removing cash from a joint bank account or taking valuable items out of the home without agreement from your spouse.

Removing marital property before divorce is never a good idea. A better approach is to work with your spouse to develop a temporary separation agreement outlining how you will pay bills and who will live in the family home. You can also use this time apart to begin gathering the financial documents you’ll need for your divorce case.

Dividing property during a divorce can be complicated, but working with an experienced family law divorce attorney can help make the process a little easier.

We Can Help

If you’re considering divorce, contact our family law and divorce attorneys at Plekan Law. We can help you understand how North Carolina’s equitable distribution law may affect your case. In addition, we can advise you of your rights and options and help protect your interests while fighting for a fair resolution to your case. Contact us today to schedule a consultation.

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