Securing Marital Property During a Divorce

In Separation & Divorce by Elizabeth Stephenson

The period of separation and divorce is like an emotional tsunami. Few people are prepared to the highs and lows of the experience, which is a time of incredible confusion and stress. Unfortunately, there are people who do not handle their emotions well, or who simply make bad decisions during this time. An example of this is when a spouse intentionally wastes or destroys marital property in order to punish the other spouse.

Also known as the dissipation of marital property, the North Carolina General Statutes allow for a court to consider “Acts of either party to maintain, preserve, develop, or expand; or to waste, neglect, devalue or convert the marital property or divisible property.” As part of its equitable division, the court can then enter an order that gives a disproportionate share of marital property to the injured spouse to offset the damage. However, before it gets to that point, there are some steps that can be taken to secure marital property.

You Need an Attorney

Property division during a divorce is incredibly complicated. It would be difficult enough to try to figure out and manage by itself, without the dark cloud of the divorce proceedings constantly breaking your concentration. As you will see, it is incredibly important to find a meticulous, knowledgeable attorney to help you, as your financial future is at stake.

Creating an Equitable Distribution Inventory

North Carolina General Statute § 50-21 requires that within ninety days after serving an equitable division claim, the spouse who files first shall prepare an “equitable distribution inventory affidavit listing all property claimed by the party to be marital property and all property claimed by the party to be separate property, and the estimated date-of-separation fair market value of each item of marital and separate property.” In other words, if you file for separation or divorce first, you will be required to create a meticulously detailed listing of all property that you are aware of, to estimate a value of each item, and to classify it as marital or separate property. Once the other spouse receives that affidavit, they have thirty days to respond with their own list.

Of course, the spouse with more resources is going to try to classify as much property as possible as separate property. The spouse with less resources will classify as much property as possible as marital property. The importance of identifying property and creating this affidavit cannot be understated. If you and your attorney are thorough and efficient in creating an inventory, that will hinder efforts of your spouse to move or hide assets to keep them out of the eyes of the court. Further, if you are complete and thorough, and have supporting documentation and appraisals, you build credibility with the court, especially if your spouse fails to report or undervalues property.

Obtain Temporary Orders to Protect Property

Beyond creating a comprehensive and accurate inventory of property, it is essential that you seek temporary orders from the court to protect property from dissipation. The North Carolina legislature has specifically granted courts the discretion to enter temporary orders “as appropriate and necessary for the purpose of preventing the disappearance, waste, or destruction of marital or separate property or to secure the possession thereof.” This order is enforceable by sanctions, so if your spouse disregards the order and engages in acts that waste or destroy marital property, the court can then hold your spouse accountable.

New Direction Family Law

If you are experiencing a legal separation or divorce, we know that this is an overwhelming experience. Let us help you focus on what you need to do to protect your legal interests. New Direction Family Law has assisted clients with separations and divorces for over twenty years and will provide you with aggressive, intelligent representation. Call New Direction Family Law today at (919) 719-3470 to schedule an initial consultation or visit us at our website.