Once you and your spouse separate, you may choose to divide your property by a separation agreement or by bringing a claim in court for equitable distribution (“ED”).
There are two bars that will prevent you from pursuing an ED claim in court. First, an absolute divorce prevents an ED claim, unless the claim is pending at the time of the divorce. There are some very specific and rare exceptions to this rule, so see North Carolina General Statutes Section 50-11(e) and (f) for information about these exceptions. Second, property distribution that is addressed or waived in a valid, written agreement will bar a later court claim for ED. This written agreement may be created before, during, or after the marriage (i.e., prenuptial, postnuptial, or separation agreement).
Once a valid ED claim is brought, the court will conduct a hearing to determine what property is marital property and divisible property. The court will equally divide this property based on the net value of the property, unless the court decides that an equal division is not equitable (meaning fair).
If the court decides that an equal division is not equitable, the court will divide the property in a manner that it deems to be equitable. In making this decision, the court will look at many factors, which are listed in North Carolina General Statutes Section 50-20(c). For example, when a minor child is involved, the court may consider the need of a parent with custody of the minor child to occupy or own the marital residence and to use or own the household items.
The court will only divide marital and divisible property. It will not divide separate property, which is the sole property of one spouse. For more information about what property is marital, divisible, or separate, click here.