Am I going to lose everything I own?
No. There is a presumption that your marital property will be divided equally between you and your spouse. North Carolina law lists a variety of factors that might justify an unequal division of marital property in special circumstances.
What is marital property?
Marital property is all real estate and personal property acquired by you or your spouse during your marriage that exists on the date you and your spouse separate. Marital property can include: your residence; your vacation home; your retirement accounts; your banking accounts; your deferred compensation accounts; your cars, boats, motorcycles; your jewelry, club memberships, and other assets.
How is the marital property divided?
North Carolina law presumes that assets of like kind will be divided or distributed. For example, a retirement account can be divided equally. In situations where an in-kind division is not possible, as in division of a house, other assets can be allocated to equalize the division, or a sum of money can be paid to balance the scales.
What happens to the assets that I owned before I got married?
Assets owned before the marriage remain the separate property of the owner. Property that is inherited during the marriage is the separate property of the person who inherited it. If marital money gets comingled into the separate property, or if separate property is used to buy jointly held real estate, division can be tricky.
We have debts. Who has to pay them?
Like assets, there is a presumption that marital debts are divided equally between you and your spouse. Like assets, there could be reasons to justify dividing the debts unequally. There is usually a gap between the date of separation and the date of settlement or trial. In this gap, you may have paid credit card debt or mortgage payments. You might be able to receive a credit for the postseparation payments you have paid to reduce marital debt.
Will my spouse get part of my business?
If you have operated your business almost exclusively during your marriage, it is likely that you will retain control of your company. Your business may be valuable. We may need an appraiser or expert to assist us in forming an opinion of value. Other assets may be distributed to your spouse to offset the value of your business, or you may have to pay a sum of money to balance the scales.
Who determines what my property is worth?
Sometimes you and your spouse make that decision by mutual agreement. Sometimes an appraiser or expert must offer an opinion. Sometimes you and your spouse will have a contested dispute about the value of an asset. The dispute can be resolved by an arbitrator or by a Judge.
My spouse wants the separation; I do not. Do I get a greater percentage of the assets because it’s not my fault?
Not likely. If there is some economic fault or intentional waste of marital assets by your spouse, it may be possible for you to obtain credit for the neglect of marital assets.
Do we have to go to court?
No. You and your spouse can reach a mutual agreement that we can help you formalize in writing. We might negotiate a settlement during a settlement conference. We might negotiate a settlement during a mediated settlement conference. We might utilize a judicial settlement conference. We might decide to arbitrate. There are a variety of ways that we can keep you out of a courtroom and keep your financial circumstances private and out of the public databases.
If we mediate, do we have to be in the same room?
No. We will be in a conference room apart from your spouse. The mediator will navigate back and forth until a settlement is reached or an impasse declared.
How long will this process take?
Honest answer: it depends. It depends on you. It depends on your spouse. It depends on your level of compromise or determination. It depends on the assets in dispute. It depends on whether you and your spouse can agree on what property is marital and what the property is worth. If there is a disagreement about an asset or the value of the asset, it can take some time to value the asset and to have someone (Judge or arbitrator) make a decision if you and your spouse cannot agree.
Dividing the property that you and your spouse have acquired together through hard work and effort is daunting, and it is emotionally difficult. We can help.