Property Division

One of the most important issues dealt with by experienced family law and divorce attorneys across the country, and especially in the Piedmont Triad, is the division of property (also known as equitable distribution). Following a lengthy marriage, it is likely that the parties have accumulated a large amount of marital property, such as bank accounts, investment accounts, furnishings, cars, and property. These are items that, following a divorce, have to be divided between the two parties.

In a divorce case, North Carolina presumes equitable distribution. That means that all marital property, both debts and assets, are divided equally between both parties. The default rule, essentially, splits everything in half, 50/50. This can be altered in at least two ways: (1) This can be altered if the parties signed a premarital agreement prior to entering into the marriage. Such an agreement allows the parties to specify how they want their property divided should they later divorce. (2) There are 14 factors for an unequal division for the court to consider.

If the parties do not have a premarital agreement in place, as is often the case, their property will need to be divided, either as decided by agreement, in mediation, or by court order. One important piece to the division of property includes the required inventory affidavits of marital property. These are known as ED Affidavits. If there is a claim for equitable distribution, the parties will each have to fill out one of these affidavits. The information on these affidavits is extensive and every item is valued as of the date of separation. It is important to accurately and completely fill out these affidavits, with the help of your attorney, to make sure that the property, including both assets and debts, is divided equally.

These ED Affidavits are useful in coming to an agreement between the parties as to the value of the items listed in the affidavit. This is why it is important to have documentation showing the value of the items as of the date of separation. The other party has a hard time arguing about the value of a bank account when you provide the statement showing the balance at the date of separation. Negotiations between the two parties, with the assistance of their attorneys, can lead to compromises that allow for the distribution of the property.

Another important aspect of property division focuses on pensions and retirement accounts. Marital property includes anything that is placed in such accounts, for example 401(k) s, during the marriage. Therefore, if one spouse has contributed over the 20 year marriage to his or her 401(k), the other spouse is entitled to half of that money presumptively.

Having a Qualified Domestic Relations Order (QDRO) entered by the court allows the second spouse to receive money directly from the administrator of the retirement plan, once the other spouse becomes eligible to receive payments. This simplifies the process and ensures that the second spouse receives the payments they are entitled to. It is important to have the assistance of an attorney to ensure that the terms of the QDRO are equitable and the QDRO itself is a valid and binding document.

To learn more about any of the previously mentioned areas under the broad category of property division, select the appropriate link below.

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