Does a Divorce Decree Have to Address Property?

In Separation & Divorce by Elizabeth Stephenson

An Absolute Divorce and Property Division Are Separate Claims

When a couple decides to divorce, they must first separate for one year and a day before they can seek a divorce. This separation requires spouses to live “separate and apart”. After the year and a day, either spouse can file for an “absolute divorce”, which legally severs the marital relationship. An absolute divorce is a relatively straightforward proceeding, in which the only real issue to dispute is the date of separation.

Significantly, an order granting an absolute divorce does not have to address other marital issues, such as equitable division of property, alimony, child custody, or child support. Further, an absolute divorce does not have to be entered at the same time that those other significant issues are decided.

The simple explanation for this is that an absolute divorce is a relatively simple proceeding, and getting a legal order of divorce is incredibly important to people. In contrast, property division, alimony, child custody, and child support can be very complex and sources of great conflict as they pertain to two subjects that couples often fight over: money and children. Resolving these issues take time, require more court hearings and mediation, and are likelier to end in a contested trial.

Property Division and Alimony Claims Must Be Preserved

Despite that an absolute divorce can granted separately from other marital issues, it is critical to be aware that you must file a claim for equitable division of property or an alimony claim prior to the court’s entry of an absolute divorce order. If the divorce is granted and no claim is on file, you will generally lose the ability to make a claim in the future.

Protecting Your Marital Property Rights

Under North Carolina General Statute Section 50-20, your attorney can file a claim for an equitable division of marital property. This can be filed at any time during your separation period and before the granting of an absolute divorce. This statue specifically allows for you to seek a court ordered injunction that prevents the “disappearance, waste or conversion” of marital property pending the proceedings.

In addition, the statute allows—and public policy encourages—separated spouses to reach binding separation agreements that address the division and distribution of property. These agreements provide stability and certainty during the separation period.

New Direction Family Law

If you are seeking a divorce, you need legal assistance. The laws regarding separation and divorce have specific timeframes and deadlines that can have a significant impact on your ability to exercise all of your legal rights. Don’t take unnecessary risks with your own future. New Direction Family Law represents clients in family law disputes, including separations, divorces, property division, and child custody matters. We strive to provide our clients with respectful, well-informed legal guidance and want to help you get things right the first time. We serve Wake, Johnston, Lee, Harnett, Cumberland, Nash, Granville, Franklin, and Durham counties. Call New Direction Family Law at (919) 719-3470 to schedule an initial consultation, or contact us at our website.