In the featured video, family law attorney Parker Herring discusses equitable distribution in North Carolina. You are entitled to seek equitable distribution through the Court if you have not entered into a Separation and Property Settlement Agreement, requested equitable distribution in the absolute divorce proceedings and prior to absolute divorce being granted. If your spouse files for absolute divorce and you do not protect your interest by responding to the Complaint, you will lose your right to seek equitable distribution forever.
What is Equitable Distribution?
North Carolina is an equitable distribution state, which means the Court is required to divide marital property fairly between both spouses. Equitable distribution is the part of a divorce in which the couples’ possessions–the house, vehicles, investment accounts, artwork, furniture, etc.–is split up and allocated to one party or the other. Any marital debt is also divided up during equitable distribution. The laws are complex regarding equitable distribution, particularly for couples who have significant assets and/or one or both spouses owns a business.
How Property Gets Divided
Ideally, you and your spouse can reach an agreement on your own and include the terms of your agreement in a Separation & Property Settlement Agreement. If you and/or your attorneys are unable to work out an agreement that is acceptable, a Complaint for Equitable Distribution can be filed. The Complaint is a request that the Court handle the division of property, assets and debts.
Equitable Distribution (referred to as “ED”) cases can become very involved and, as a result, become quite costly for both parties. The Court requires both parties to file certain affidavits and produce specific documents related to all assets to the other party. If an agreement is still not reached during this process, there will be a Court trial, after which the judge will issue an order as to how everything will be divided.
Absolute Divorce and ED
Absolute Divorce can permanently end any claim you may have for ED. If you or your spouse file a Complaint for Absolute Divorce that does not preserve your rights to equitable distribution and the Court grants a final judgment of divorce, the right to equitable distribution is lost forever. ED must be preserved in the Complaint and Judgment Decree of divorce; the Court will not hear ED cases after a divorce is final if neither party preserved this right.
Experienced Attorneys Can Help
Equitable Distribution in North Carolina can become very complicated depending on the assets and property involved. You need an experienced attorney who knows the laws of equitable distribution to protect your interests. Our attorneys are Board Certified Specialists in Family Law and have over fifty years combined experience handling ED cases. Fill out the contact form or give us a call at (919) 821-1860 to schedule a consultation with an experienced Raleigh family law attorney today.
Herring & Mills PLLC is a full service Raleigh family law firm. Our attorneys exclusively practice family law only, and handle cases regarding adoption, separation, child custody, child support, contested divorce, uncontested divorce, equitable distribution, alimony, alienation of affection, criminal conversation, domestic violence, spousal support, assisted reproduction, egg donation and surrogacy. If you need a North Carolina lawyer for help with your family law case, call us at (919) 821-1860. Our offices are located in downtown Raleigh, North Carolina. We offer family law representation to the residents of Raleigh and the counties of Wake, Durham, Chatham and Orange, including Cary, Apex, Holly Springs, Knightdale, Zebulon, Wendell, Garner, Brier Creek, Midtown, North Hills, Morrisville, Wake Forest, Rolesville, Fuquay Varina, Durham, Chapel Hill, Carrboro, South Pointe, RDU and beyond. Call us today at (919) 821-1860.
When You Can Seek Equitable Distribution
You may ask the court for equitable distribution if:
- The right to do so was preserved in your absolute divorce proceedings;
- A Judgment of Absolute Divorce has not been entered by the Court; and/or
- There was no Separation and Property Settlement Agreement signed by both parties
How is Equitable Distribution determined?
There are thirteen factors the court considers in determining equitable distribution, including:
- Length of marriage
- Liquidity of marital property
- Contributions of each party (NOTE: a homemaker is considered equal to the party with a paying job)
- Custodial parent
- Age, physical, mental and emotional health of the parties
- Expectation of pensions, retirement benefits, etc.
How Equitable Distribution Came to North Carolina
Leatherman v. Leatherman
Bessie and Floyd Leatherman were married in 1947. Bessie was working in a mill, her husband was hauling lumber–they were lower middle class at best. In 1951, Floyd purchased a bulldozer from his father and started his own grading business. While raising their three children, Bessie managed the office side of her husband’s business and within a decade, she was handling payroll for their 28 employees while also ensuring taxes were filed and paid, federal and state forms were filed appropriately, business calls were answered, and so on. Their business had revenue of $500,000 in 1965. The following year, Floyd decided to incorporate but for tax purposes, issued all the company stock in his name only.
Ten years later, in 1975, Floyd Leatherman filed for divorce. At settlement, he refused to give his wife any ownership in the business or any money from the business accounts. Despite appealing all the way to the North Carolina Supreme Court, Bessie Leatherman’s ownership claims were shot down and the Court sided with her husband. Because his name was the only name on the business documents and accounts, the business was his. In 1979, Bessie Leatherman’s marriage ended and she got nothing. The state’s legal community was shocked. State lawmakers, however, responded quickly. In 1981, North Carolina passed its first Equitable Distribution Act, the first major. State Supreme Court Justice Sally Sharp described the law as the “greatest change in North Carolina domestic law since the turn of the century.”