North Carolina Equitable Distribution / Property Division Attorneys
The distribution of property owned by the parties at the time of their separation is one of the important issues that must be resolved in a separation and divorce. Nicholas J Dombalis, II has almost 40 years of experience in helping his clients in dividing their property. There are many factors that must be considered in determining how best to divide marital assets. Mr. Dombalis has the experience and knowledge to help guide you through what can be a complicated and time-consuming process.
Typically property is divided in a Property Settlement Agreement between the parties. The Property Settlement Agreement is customarily a part of a Separation Agreement which resolves other issues arising from the separation and divorce such as custody, child support, and alimony.
There are three steps involved in the process of equitable distribution. In the first step, all property owned by the parties as of the date of separation are identified. Each property is classified as either separate property or marital property. Marital property is generally all property acquired by the parties during the marriage and owned as of the date of separation unless the property was acquired by a party by inheritance or gift from a third-party. If the property was owned by a party before the marriage or was acquired by a party after the marriage by inheritance or gift, generally that property is considered the separate property of the owner and is excluded from the marital estate. A party’s separate property would be distributed to him or her.
The second step of the process in equitable distribution is to place a fair market value on all marital property. This would include such property as real estate (marital home, vacation properties), automobiles, bank accounts, investment accounts, retirement accounts, permanent life insurance policies, and furniture and other household items. Marital property can also include a business owned by one or both of the parties. Experts who are trained to place a value on businesses are typically used to determine the value of a business which is marital property.
The third step of the process in equitable distribution is to divide the marital property. The law presumes that an equitable distribution is an equal (50/50) distribution but there are factors which the court can use to justify a distribution of more than 50% of the marital property to one of the parties to a separation and divorce. If the division of property, either by way of a Separation Agreement and Property Settlement or by court order, involves a transfer of a party’s retirement to the other party, a Qualified Domestic Relations Order (QDRO) is required. The QDRO signed by the court would direct the Plan Administrator for the retirement plan to divide the retirement account in accordance with the terms of the QDRO. The exception would be the division of an IRA which does not require a QDRO. An IRA requiring a transfer would be accomplished with a Domestic Relations Order (DRO) or a trustee to trustee transfer.
In a Property Settlement Agreement, the parties are free to divide their property in any manner in which they see fit, even if their agreement involves one of the parties receiving more than 50% of the marital property. While it is important to know North Carolina law on equitable distribution in order to understand the steps that a judge will take in dividing the property if the matter goes to court, the parties can decide what they feel is fair and document their agreement in a Property Settlement Agreement.
Mr. Dombalis can help guide you through what can be a complicated process in dividing your assets. Please contact Mr. Dombalis if you would like to set up an appointment to discuss the division of your property or other issues pertaining to your separation and divorce.
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