Who Gets the House in a Divorce in North Carolina?

Who Gets the House in a Divorce in North Carolina?

If you find yourself contemplating a divorce, you may wonder about all of the issues you’ll have to work through as part of the process. Support, custody, and property division – these can all be complicated issues that a couple has to work through when they take one life and turn it back into two.

When it comes to property division specifically, many people want to know what will happen to the family house after a divorce. Let’s examine some of the options together.

How Is Property Divided in North Carolina?

In North Carolina, property is divided according to a theory of “equitable distribution.” This term may sound complex, but essentially, it means that when a court attempts to divide property in a divorce, it will try to do so as fairly and equitably as possible.

It’s important to understand that this does not always mean that property will be divided “equally” in a 50-50 split, but rather, that a court will assess the entire situation and attempt to make a decision that seems as fair as possible to both parties in a given situation.

To do this, a court will assess the property at issue and place it into three different categories before making a division between the parties.

Types of Property in North Carolina

In North Carolina, courts place property into three categories when assessing property for division during a divorce. These categories include:

Separate Property

• Separate property generally consists of assets that either spouse has acquired before marriage. It may also include gifts or inheritances given specifically to one spouse, income that one spouse derives from separate property, increases in the value of separate property, or property acquired in exchange for separate property.

Marital Property

• Unlike separate property, marital property is property acquired by either spouse during the marriage, regardless of whose name is on the title to that property. Accordingly, a house purchased during a marriage will generally be considered marital property even if only one spouse’s name appears on the deed.

Divisible Property

• Divisible property is a third category of property that generally includes changes in the value of marital property that occur between the date of separation and the date that property is actually distributed. In most marriages, the family home is considered marital property. This is because both spouses generally contribute toward paying the mortgage and maintaining and caring for the home.

In certain situations, such as in the case of a prenuptial agreement that makes it clear that the home belongs only to one spouse, or when one spouse owned the home free and clear before the marriage and the other spouse never made any investment in the home, it may not be considered marital property, but generally, this is the case.

This leads to the obvious question – how do courts determine who gets the home?

Can a Couple Decide Who Gets the House?

Before we discuss factors that a court might consider in determining who gets the family home, it’s important to realize that a court does not actually have to decide the issue at all.

In fact, in many divorces, a court is never involved in the process at all, other than to approve the divorce agreement that the parties have negotiated and drafted themselves.

Indeed, this process of negotiating and resolving divorce-related issues outside of court – often called alternative dispute resolution – is becoming increasingly popular nationwide.

When a couple chooses to address their divorce-related issues outside of court, they choose freedom and flexibility.

Meeting together in a neutral setting to discuss, negotiate, and resolve issues truly allows a couple the opportunity to find solutions that work best for their family and their future. Even better, it often saves time and money and reduces stress.

If a couple chooses to work through their issues outside of court, property division is almost always one of the issues addressed.

As a result, a couple will have the opportunity to discuss which spouse, if either, might stay in the family home. This gives a couple the opportunity to negotiate and come up with any number of solutions that may work.

One spouse may choose to stay in the family home in exchange for foregoing spousal support of any kind. In other situations, one spouse may choose to give up the family home in exchange for the other spouse’s agreement to a desired visitation schedule.

Truly, there are endless opportunities to address the issue of who gets the house and all other issues that a couple faces when those issues are addressed out of court.

After a couple comes to an agreement, all that is necessary is to put that agreement in writing, have it signed, notarized, and approved by the court. After that time, the parties can move forward with their lives.

While resolving issues by agreement is certainly optimal, it’s not always a viable choice for some couples. In those cases, a court may decide who gets the house. Let’s look at a few factors the court may consider in doing so.

Factors That a Court May Consider in Deciding Who Gets the House

If a court decides who gets the family house, it may consider a variety of factors depending on the circumstances involved. As a general rule, the court will consider the house and all of the other assets and debts a couple owns. As noted, it will divide the property into various categories and attempt to equitably distribute that property – including the house – as it sees fit. Some of the factors that the court will consider may include the financial position of each spouse, including their earnings, ability to earn, other assets, and other debts.

It is essential to understand that once a court issues a decision regarding property, that decision is binding until and unless the court later modifies it. As a result, many couples often attempt to negotiate their own resolution to property division issues prior to presenting them to a court for a decision.

The Law Office of Dustin McCrary – With You Every Step of the Way

At The Law Office of Dustin McCrary, we know that the divorce process is a journey full of many twists and turns. It can seem intimidating and scary before you take the first step because you don’t know what to expect. That’s why we’re here.

We’ve traveled this path often with our clients, and we know how to help you avoid the pitfalls and potholes ahead. We’ll meet you where you are and walk with you each step of the way as you move toward a better and brighter chapter in the future.

If you’re ready to take that first step today, contact us. We look forward to learning how we can help you soon.