Should You Divorce Before Settling the Division of Property?

Settling property division matters before getting divorced is often preferable to getting the court involved.

As an equitable distribution state, North Carolina allows the court to fairly divide property during divorce.
To determine the division of property, the court needs to evaluate several factors including the health, assets, income, and liabilities of each spouse. This process takes time and may include additional legal fees, disputes, and stress.
Instead of allowing the court to divide property, spouses have the chance to come to their own agreement.

What Is a Separation Agreement?
Couples have the right to equitable distribution of marital property at the time of separation. Couples may either come to their own terms or allow the court to handle property division.
To avoid a drawn-out court process, spouses may submit a separation agreement. This agreement is a private contract between the spouses.
The terms of the agreement resolve various issues related to the separation. Besides property division, this agreement may cover child custody, child support, spousal support, and any other responsibilities.
The separation agreement needs to be in writing and signed by both parties. In most cases, spouses work with attorneys to ensure that the agreement meets legal requirements.

Spouses do not need to submit a separation agreement but settling property outside of the court provides several advantages:
● Eliminate the need for a court judgment
● Reduce the overall legal fees of divorce
● Limit the stress of the divorce process
● Work toward an amicable divorce

A separation agreement also helps prevent future disputes and resolve potential court rulings. If the spouses properly execute the agreement, it may bar subsequent equitable distribution judgments.

The separation agreement can also include details related to child custody , child support , and spousal support. However, if one of the spouses choose to file a child custody case after the divorce, the court has the right to order a different arrangement.
For example, if one parent has evidence of neglect, he or she may petition the court for custody. Based on the details of the case, the court may overrule the terms of the separation agreement.

Not all spouses can come to an amicable decision on the division of property. When spouses cannot work out their disputes on their own, the court will need to fairly divide the property.

Equitable Distribution Splits Marital and Divisible Property
When spouses cannot resolve property disputes before filing for divorce, the court begins the property division process. The goal of equitable distributionis to fairly split the spouses’ marital and divisible property.
The property includes more than just real estate. Other assets include vehicles, antiques, artwork, insurance policies, money, and even debt.
Before dividing this property, the court needs to categorize it as one of the following types of property:
● Marital property
● Divisible property
● Separate property
Marital property includes everything earned or acquired during the marriage but before separation. The divisible property covers any changes to the value of the marital property between the date of separation and the division of property.

The Court Cannot Divide Separate Property During Divorce
While the court can divide marital and divisible property, it cannot divide the separate property. This includes property that a spouse acquired after separation or before marriage.
Separate property can include property obtained during the marriage if only one spouse was the intended recipient. For example, an inheritance or a gift obtained during the marriage may count as separate property.
In most cases, the marital and divisible property includes the spouses’ home, personal property, and intangible property such as income and debts.

How Does the Court Equally Divide Property?
The North Carolina courts understand that in some situations, equal distribution of property would not be fair. Instead of simply dividing the property 50/50, the court considers the circumstances of each couple for fair property division. The following factors influence the court’s decision:
● Health
● Assets
● Income
● Liabilities
● Ages
● Child custody
● Length of marriage

The court also considers the contributions of each spouse. According to the court, spouses who act as homemakers contribute equally to the marital property.
Marital misconduct does not influence the division of property. Affairs and bad behavior may not result in the other spouse receiving a greater portion of the property and assets. However, marital misconduct does affect spousal support.

Additional circumstances may exclude certain property or affect the court’s equitable distribution judgment:
● Federal laws
● Military pay
● Death of a spouse

In certain situations, federal law may precede North Carolina law. For example, North Carolina courts cannot divide Social Security benefits or retirement pay. Military pay is also exempt from this process.
The death of one of the spouses may impact the distribution ruling, depending on when the death occurs. If a spouse dies before the court grants divorce, the court dismisses the equitable distribution process.
If a spouse dies after the court grants divorce but before ruling on the division of property, the process continues. In these cases, an executor or beneficiary handles the interests of the deceased spouse.

To file for divorce, couples need to remain separate for at least one year and one day. One or both parties must still live in North Carolina. However, both parties do not need to agree to the divorce for one party to begin the divorce process.
Before filing for divorce, take the time to consider the benefits of a separation agreement. Resolving property disputes outside of the court saves time, money, and stress. For more information, consult with a qualified North Carolina divorce lawyer.