How Separate Property Works 1

When a marriage ends, property division is an enormous issue that a couple must address to protect their rights and secure their financial future. Classifying and appraising property is no small task and the law can be complex. No matter how much property a couple has, their rights must be addressed thoroughly and accurately. If you are in this position, an experienced family law attorney can help you achieve this so you can move forward.

Equitable Distribution in North Carolina

North Carolina divides property between a couple based on the equitable distribution method. This method takes the total fair market value of all of the couple’s marital property and debt and divides it equally between the spouses. But if a court finds that it isn’t fair to make an equal division, it can consider a wide variety of factors to make an “equitable” division. This can include the incomes and liabilities of each spouse, the duration of the marriage, the health of each party, the contributions of a spouse to the career or property of the other, as well as numerous other factors.

Marital property includes property and debt attained or accrued during a couple’s marriage. In essence, equitable distribution derives from the idea that both spouses contribute to the marriage, household, and family, and they should have an equal right to everything earned during the marriage.

What is Separate Property?

In contrast to handling marital property, equitable distribution leaves each spouse’s separate property alone. Separate property is:

  • Real and personal property acquired by a spouse before marriage;
  • Property acquired by a spouse during the marriage by devise, descent, or gift (inheritance);
  • Property that one spouse gifts to the other during the marriage, if that intention is explicitly stated in the conveyance of the property;
  • Property acquired during a marriage in exchange for separate property, “regardless of whether the title is in the name of the husband or wife or both and shall not be considered to be marital property unless a contrary intention is expressly stated in the conveyance;”
  • Any income derived and increase in the value of separate property; and
  • All professional licenses and business licenses which would terminate on transfer.

Because separate property is exempt from equitable distribution, the classification of property as either marital property or separate property is a key element of property division that can be highly contested. An experienced lawyer can help you get it right.

Is there a Prenuptial Agreement?

An exception to the rules of equitable distribution and separate property is when a prenuptial agreement exists between a couple. These are legally binding contracts entered before a couple’s date of marriage that can preemptively bypass equitable distribution and designate property as separate property that would have otherwise be marital property. If a couple has a valid prenuptial agreement, then this agreement controls if the couple divorces.

Let New Direction Family Law Assist You

New Direction Family Law provides effective family law representation to men and women in Wake, Johnston, Durham, and surrounding counties. If you are seeking a divorce, contact us today. Our experienced attorneys understand how high the stakes are for you and will utilize our knowledge and experience to help you move forward. Call New Direction Family Law at (919) 719-3470 to schedule an appointment or visit us online at our website.

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