Black-letter propositions
- 01
In an equitable distribution state, upon application of a party the court determines what is marital property and divisible property and provides for an equitable distribution of it between the parties.
- 02
Under the North Carolina statute, marital property is all real and personal property acquired by either or both spouses during the marriage and before the date of separation and presently owned, except separate property and divisible property, and it includes vested and nonvested pension and retirement rights.
- 03
It is presumed that all property acquired after the date of marriage and before the date of separation is marital property, and it is presumed that real property held as tenants by the entirety and acquired in that period is marital property, and either presumption may be rebutted by the greater weight of the evidence.
- 04
Separate property is property acquired by a spouse before the marriage or acquired by devise, descent or gift during the marriage.
- 05
Property acquired in exchange for separate property remains separate property whether title is in one or both names, and the increase in value of separate property and income derived from it are separate property.
- 06
Property, other than real property, acquired by gift from the other spouse during the marriage is separate property only if that intent is expressly stated in writing, and real property so acquired is separate only if the intent is stated in a written agreement separate from the conveyance.
- 07
Divisible property includes appreciation and diminution in value of marital property after separation and before distribution, except that resulting from a spouse's postseparation actions, and it includes passive income from marital property received after separation.
- 08
There is to be an equal division of the net value of marital and divisible property unless the court determines that an equal division is not equitable, in which case it divides the property equitably after considering listed factors.
- 09
The factors include the income, property and liabilities of each party, the duration of the marriage and the parties' ages and health, the need of a custodial parent to occupy the marital residence, and each spouse's contributions to the acquisition of marital property, including as a homemaker.
- 10
Other factors include a spouse's contributions to educate or develop the career potential of the other, any direct contribution to an increase in the value of separate property, the tax consequences, and acts of a party to waste or neglect marital property after separation.
- 11
In North Carolina, a court awards alimony to a dependent spouse if it finds that one spouse is dependent, the other is a supporting spouse, and an award is equitable after considering all relevant factors.
- 12
In North Carolina, if the dependent spouse participated in an act of illicit sexual behavior during the marriage and before or on the date of separation the court may not award alimony, and if the supporting spouse did so the court must order alimony to a dependent spouse, and an act condoned by the other party is not considered.
Use this attack sequence under time
Frame the issue
Classify each asset as marital, separate, or divisible as of the date of marriage and the date of separation.
Resolve the next checkpoint
Apply the presumption that property acquired during the marriage and before separation is marital, and ask whether it has been rebutted.
Resolve the next checkpoint
Start from an equal division and ask whether an equal division is inequitable under the statutory factors.
Finish the conclusion
For alimony, identify a dependent spouse and a supporting spouse and check the statute's fault rules.
Common wrong turns
- A gift or inheritance to one spouse is separate property, but a gift from one spouse to the other needs an express written statement of intent to be separate.
- The increase in value of separate property is separate, and only a spouse's direct contribution to that increase is a factor in the division.
- Rules differ by state, so an answer under a community property or equitable distribution rule depends on which jurisdiction governs.
Worked example
Before marrying, a wife owns a house. During the marriage her husband pays part of the mortgage from his earnings, and the house rises in value. The couple separates and files for divorce.
The house was acquired before the marriage and is the wife's separate property, and its increase in value is also separate. The husband's mortgage payments are a factor in the division, but they do not convert the house into marital property under this statute.
Practice this topic
Marital, separate, and divisible property
Under North Carolina General Statutes section 50-20, the court on application determines what is marital property and divisible property and provides for an equitable distribution of it. Marital property is all real and personal property acquired by either spouse or both during the course of the marriage and before the date of separation and presently owned, except separate or divisible property, and it includes vested and nonvested pension and retirement rights; there is a presumption that property acquired between marriage and separation is marital, and a presumption for tenancy by the entirety property, and both can be rebutted by the greater weight of the evidence.
Separate property is property acquired before marriage or by devise, descent or gift during the marriage, property acquired in exchange for separate property, and the increase in value of and income from separate property. A gift of personal property from the other spouse is separate only if that intent is expressly stated in writing, and a gift of real property from the other spouse is separate only if stated in a written agreement separate from the conveyance. Divisible property is postseparation appreciation and diminution of marital property, passive income from marital property, and certain property received after separation that was earned during the marriage.
Equal division and the equitable factors
Section 50-20(c) requires an equal division of the net value of marital and divisible property unless the court determines that an equal division is not equitable, in which case the court divides equitably after considering listed factors, among them the income, property and liabilities of each party, the duration of the marriage and the parties' ages and health, the custodial parent's need to occupy the marital residence, and each party's contributions as spouse, parent, wage earner or homemaker.
The listed factors also include a spouse's contribution to the other's education or career development, direct contributions to increases in the value of separate property, the liquidity of the property, the difficulty of valuing a business and the desirability of keeping it intact, the tax consequences, and acts after separation to preserve or waste marital property. Wex describes equitable distribution as a fair allocation based on statutory factors and distinct from the equal division generally used in community property states.
Alimony
Under section 50-16.3A(a) of the North Carolina General Statutes, either party may move for alimony, and the court must award alimony to the dependent spouse upon finding that one spouse is dependent, the other is a supporting spouse, and an award is equitable after considering all relevant factors.
The statute provides that the court may not award alimony if the dependent spouse participated in illicit sexual behavior during the marriage and before or on the date of separation, must order alimony if the supporting spouse did so, and has discretion if both did, and it disregards acts condoned by the other party. Alimony rules, and especially the role of marital fault, vary from state to state.
Frequently asked questions
What is the controlling rule for dividing property and awarding alimony at divorce: marital versus separate property (north carolina as the model)?+
Say which state's law governs, classify the property, apply the presumption and the equal-division starting point, discuss the factors that may justify an unequal division, and address alimony.
What is marital property?+
Property acquired by either spouse during the marriage and before separation, in equitable distribution states such as North Carolina, subject to rebuttable presumptions.
Is an inheritance marital property?+
Not in North Carolina. Property acquired by devise, descent or gift by one spouse during the marriage is that spouse's separate property.
Is marital property always divided equally?+
Not always. North Carolina starts with equal division of net value unless the court finds equal division inequitable under listed factors.
What is divisible property?+
Postseparation appreciation of marital property, passive income from it, and certain earnings from the marriage received after separation, under section 50-20.
How does equitable distribution differ from community property?+
Equitable distribution allocates fairly by statutory factors, while community property states generally divide marital property equally.