Property division is an issue that almost every couple will face during their divorce. Not all couples will have children. Not all couples have pets. Not all spouses necessarily want or need alimony. However, almost all couples will have some property that must be divided when they separate. For most couples, the family home is the most significant “item” of property to be addressed. Who gets the house – and why? It’s an important question to ask. Let’s take a closer look together at how this issue is commonly addressed.
Dividing Property – A Look at Two Potential Options
In North Carolina, as in most states, there are two primary options for dividing property: agreement or court order.
The first option that all couples have is to address their issues, including property division, by agreement outside of court. A couple might choose to do this in any number of ways. In some cases, couples choose mediation. In other cases, they choose arbitration. Sometimes, couples choose collaborative law, a newer way of resolving issues. The couple and their attorneys work together to resolve their issues outside of a courtroom using a unique system of rules that encourages effective communication and compromise.
Regardless of which of these methods works best for a particular couple, the goal is ultimately the same – to find solutions for issues outside of a courtroom. This has several advantages. First and foremost, it gives the couple the freedom and flexibility to resolve their problems in a way that works best for their family and future. After all, no judge, no matter how well-intentioned they may be, will ever know your family like you do. Additionally, resolving issues outside of a courtroom will reduce time, expense, and stress, which definitely benefits everyone involved.
In some cases, however, a couple may be unable to address and resolve their issues outside of a courtroom for any number of reasons. It’s best to let a judge make the decisions in those situations. In those cases, the parties will typically present evidence and arguments on the various issues to the court, and the court will then enter an order resolving the issues. That order will be binding on the parties unless and until the court later modifies it.
What is the Difference Between Various Types of Property?
As the parties or the court attempt to determine who will receive the house and other items of property, one factor that will typically be considered is what type of property it is. In North Carolina, there are three types of property:
- Marital: Marital property generally consists of all real and personal property that the parties acquire from the date of their marriage up to and until the date of their separation.
- Separate: Separate property is property, either real or personal, that one spouse owned before the marriage or that they received as an inheritance or gift in their name alone during the marriage.
- Divisible: Divisible property is typically the change in value of any marital property from the date the couple officially separates until the date the property is ultimately distributed. In the case of a home, for example, an increase or decrease in the home’s value, the costs of ongoing maintenance, and other factors might affect this amount.
A family home is usually considered marital property—although this is not always the case. If the house was purchased after the parties were married using marital funds, it is marital property, even if only one spouse’s name is on the deed.
In other cases, however, it is possible that one spouse owned a house outright before the marriage – in that case, the house may be considered separate property. This can, however, become complicated at times. Sometimes, a home may be converted from separate property to marital property. This may occur if the couple modifies the deed to include both names or if the spouse who is not on the deed regularly contributes to the upkeep and maintenance of the house, financially or otherwise.
Understandably, these issues can seem complicated, and all circumstances are slightly different. For this reason and many others, consulting an attorney who knows and understands divorce law regarding how your family home might be classified is essential.
How Will Various Types of Property be Divided?
In North Carolina, as in most other states, parties who choose to address property division by agreement can divide the property in almost any manner they want. This is true regardless of whether the property is technically considered marital, divisible, or separate. While an attorney may counsel a party not to give up a separate property without significant compensation or concession, this is ultimately the individual’s decision. As a result, couples have the freedom and flexibility to divide any property – including the marital home, in a way that they feel will best suit their family’s needs.
However, in the case of a court-ordered property division, the characterization of property becomes more important. If a court divides the property, then the separate property will always remain separate. As a result, if owned separately by one spouse before and throughout the marriage, the house will go to that spouse in the divorce.
In the case of marital and divisible property, however, North Carolina courts will typically seek to divide that property according to “equitable distribution.” In essence, this term means that the most equitable (or fair) property division is ideal. A judge is given great discretion when determining what is “fair” or “equitable.” In attempting to make that decision, a judge will usually consider a variety of factors, including:
- The income of each spouse
- The assets and debts of the couple
- Non-monetary help that one spouse may have contributed to the home
- Help that one spouse gave the other during that spouse’s education and professional development
- Custody matters
- And a variety of other factors.
When deciding who will receive the house and various other assets and debts, the judge generally considers these factors and attempts to make as fair a decision as possible. Often, if one parent has primary custody of the children, a court will give that factor considerable weight in awarding the marital home—although not always. Each situation is unique; consulting with a knowledgeable and experienced attorney is always advised.
Call the Law Office of Dustin McCrary Today
The divorce journey is one in which you’ll be required to confront many complex issues. From determining who gets the house to who has custody of the children, it’s a journey filled with many choices. Sometimes, the choices can seem complicated, and that’s understandable. That’s why we’re here to help.
At The Law Office of Dustin McCrary, we know and understand every aspect of divorce law, and we’re passionate about helping our clients reach the best resolutions for the issues that matter to them the most. You deserve nothing less. If you’re ready to get started, give us a call today.
We look forward to helping you soon.