Equitable distribution is the legal term in North Carolina for the process of dividing marital and divisible property. Equitable is not synonymous with equal and a 50/50 split is not required. Instead, equitable means fair. There are multiple factors the Court considers when making an equitable distribution determination, including the duration of marriage, education and potential earning capacity of both spouses, age, health, and special needs of the spouses, just to name a few.
The Court may also consider adverse actions taken by each spouse. For example, if one spouse spent a large sum of marital funds on an internet chat website, the Court may weigh this as a factor when determining the division of property. Another factor that may be considered is the non-monetary family contributions of each spouse. An example of this would be if one spouse was a homemaker who stayed home to raise a family while the other spouse worked, this contribution can be weighed along with several other factors. Interestingly, the Court can also consider the amount of separate property each spouse owns when making an equitable distribution determination. However, the Court cannot divide an individuals separate property in an equitable distribution matter. It is only one factor to be considered in conjunction with other applicable factors.
In North Carolina, if a claim for equitable distribution is not asserted before the Court grants an absolute divorce, the equitable distribution claim may be deemed waived. It is important to note that parties can negotiate their own agreement for property division without Court involvement, and that equitable distribution in Court is only necessary when the parties cannot independently come to an agreement on property division through negotiation or mediation. In North Carolina, all equitable distribution cases are referred to mediation to see if the parties, with the assistance of a neutral mediator, can reach an agreement on how the marital and divisible property should be divided. If the parties cannot come to an agreement, the case goes back to the judge for an equitable distribution ruling.
Equitable distribution is determined on a case by case basis and it is important to consult with an attorney to understand all the factors the Court may consider and apply to your unique case.