Deciding to divorce is only the first step in a lengthy process – one in which couples will find themselves confronting many issues, and asking many questions. One of the most common is – when it comes to dividing up our property, who gets what? It’s a good question to ask, and one for which there is no one-size-fits-all answer. In North Carolina, couples typically have two options – they can divide their property themselves, or they can ask the court to do it.
If a couple decides to divide their property themselves, there are almost no limits on how they can choose to do so. If one spouse especially wants to stay in the marital home, and another would rather keep the majority of the money in the 401K account, they can choose to do so. If there are certain heirlooms that mean more to one spouse than another, the spouses can divide them accordingly. There is freedom and flexibility in being able to make these decisions together in a cooperative and collaborative way.
In other cases, however, for one reason or another, couples have difficulty coming to an agreement on how to divide their property. It may simply be that emotions are running high, or the pain of the decision to divorce is still too difficult, or one spouse is simply unwilling to work with the other. Whatever the case, in some situations, the court will need to become involved. If that happens, most couples wonder – how will a court make those decisions?
In North Carolina, courts will usually seek to divide property using a process called equitable distribution. What this generally means is that courts will seek to divide the property as equitably (or fairly) as possible, considering all of the circumstances involved. While the process can be quite complex, it will generally consist of:
- Classifying: Classifying the property generally means determining whether it is marital property or separate property. Marital property is typically considered to be all property obtained by the spouses during the marriage and belonging to both spouses, and separate property, which is either property owned by one spouse before the marriage or given only to one spouse by gift or inheritance.
- Dividing: After a court has determined what types of property exist, it will usually seek to divide it in as fair a manner as possible, considering all of the circumstances at issue in the particular divorce.
It is our hope that the resources and advice in this section will be helpful to you as you prepare for your divorce and contemplate how you might divide your property. Ultimately though, while general information is helpful when it comes to dividing property or any other issue in a divorce, there is no substitute for the advice and guidance of a professional and experienced attorney who can help you apply the law to your particular circumstances. At The Law Office of Dustin McCrary, we’re here to do exactly that. Call us at any time.