At any time after a husband and wife begin to live separate and apart from each other, a claim for Equitable Distribution of marital property may be filed. There should be a division of marital assets as well as marital debt. The Separate property and the separate debt of each party remains separate. Marital property and debt is subject to division by the court.
Separate property is property obtained by one of the spouses before marriage that remains in that spouse’s name and is separate from property obtained during the marriage. It can also include property obtained by a spouse that is inherited or is a gift only to that spouse, as long as that property remains the separate property of the spouse to whom it is given. Property classified as separate property is not subject to equitable distribution. Property is not automatically considered “separate property” just because the property is titled in one spouse’s name alone.
An Equitable Distribution is presumed to be an equal division of the property and debts, however, a judge can determine that an equal division is not equitable and then may make a division the court deems equitable after considering many factors such as the duration of the marriage, the relative health and income of the parties, the need of a parent having custody of the children to keep the marital residence, and others.
The right to obtain an equitable distribution of marital property can easily be lost or waived if it is not pursued prior to an entry of an absolute divorce judgment. Without legal representation, mistakes can be made, such as failing to include a spouse’s retirement as marital property.
Before you pursue or finalize any property settlement with your spouse, call 704 868-2292 to schedule an appointment to discuss your family law matter.