McIlveen Family Law Firm

Equitable Distribution Statue

Angela McIlveen — Sat, 25 Aug 2012 18:25:14 +0000

§ 50‑20. Distribution by court of marital and divisible property.
(a) Upon application of a party, the court shall determine what is the marital property and divisible property and shall provide for an equitable distribution of the marital property and divisible property between the parties in accordance with the provisions of this section.
(b) For purposes of this section:
(1) “Marital property” means all real and personal property acquired by either spouse or both spouses during the course of the marriage and before the date of the separation of the parties, and presently owned, except property determined to be separate property or divisible property in accordance with subdivision (2) or (4) of this subsection. Marital property includes all vested and nonvested pension, retirement, and other deferred compensation rights, and vested and nonvested military pensions eligible under the federal Uniformed Services Former Spouses’ Protection Act. It is presumed that all property acquired after the date of marriage and before the date of separation is marital property except property which is separate property under subdivision (2) of this subsection. This presumption may be rebutted by the greater weight of the evidence.
(2) “Separate property” means all real and personal property acquired by a spouse before marriage or acquired by a spouse by devise, descent, or gift during the course of the marriage. However, property acquired by gift from the other spouse during the course of the marriage shall be considered separate property only if such an intention is stated in the conveyance. Property acquired in exchange for separate property shall remain separate property regardless of whether the title is in the name of the husband or wife or both and shall not be considered to be marital property unless a contrary intention is expressly stated in the conveyance. The increase in value of separate property and the income derived from separate property shall be considered separate property. All professional licenses and business licenses which would terminate on transfer shall be considered separate property.
(3) “Distributive award” means payments that are payable either in a lump sum or over a period of time in fixed amounts, but shall not include alimony payments or other similar payments for support and maintenance which are treated as ordinary income to the recipient under the Internal Revenue Code.
(4) “Divisible property” means all real and personal property as set forth below:
a. All appreciation and diminution in value of marital property and divisible property of the parties occurring after the date of separation and prior to the date of distribution, except that appreciation or diminution in value which is the result of postseparation actions or activities of a spouse shall not be treated as divisible property.
b. All property, property rights, or any portion thereof received after the date of separation but before the date of distribution that was acquired as a result of the efforts of either spouse during the marriage and before the date of separation, including, but not limited to, commissions, bonuses, and contractual rights.
c. Passive income from marital property received after the date of separation, including, but not limited to, interest and dividends.
d. Increases and decreases in marital debt and financing charges and interest related to marital debt.
(c) There shall be an equal division by using net value of marital property and net value of divisible property unless the court determines that an equal division is not equitable. If the court determines that an equal division is not equitable, the court shall divide the marital property and divisible property equitably. The court shall consider all of the following factors under this subsection:
(1) The income, property, and liabilities of each party at the time the division of property is to become effective.
(2) Any obligation for support arising out of a prior marriage.
(3) The duration of the marriage and the age and physical and mental health of both parties.
(4) The need of a parent with custody of a child or children of the marriage to occupy or own the marital residence and to use or own its household effects.
(5) The expectation of pension, retirement, or other deferred compensation rights that are not marital property.
(6) Any equitable claim to, interest in, or direct or indirect contribution made to the acquisition of such marital property by the party not having title, including joint efforts or expenditures and contributions and services, or lack thereof, as a spouse, parent, wage earner or homemaker.
(7) Any direct or indirect contribution made by one spouse to help educate or develop the career potential of the other spouse.
(8) Any direct contribution to an increase in value of separate property which occurs during the course of the marriage.
(9) The liquid or nonliquid character of all marital property and divisible property.
(10) The difficulty of evaluating any component asset or any interest in a business, corporation or profession, and the economic desirability of retaining such asset or interest, intact and free from any claim or interference by the other party.
(11) The tax consequences to each party, including those federal and State tax consequences that would have been incurred if the marital and divisible property had been sold or liquidated on the date of valuation. The trial court may, however, in its discretion, consider whether or when such tax consequences are reasonably likely to occur in determining the equitable value deemed appropriate for this factor.
(11a) Acts of either party to maintain, preserve, develop, or expand; or to waste, neglect, devalue or convert the marital property or divisible property, or both, during the period after separation of the parties and before the time of distribution.
(11b) In the event of the death of either party prior to the entry of any order for the distribution of property made pursuant to this subsection:
a. Property passing to the surviving spouse by will or through intestacy due to the death of a spouse.
b. Property held as tenants by the entirety or as joint tenants with rights of survivorship passing to the surviving spouse due to the death of a spouse.
c. Property passing to the surviving spouse from life insurance, individual retirement accounts, pension or profit‑sharing plans, any private or governmental retirement plan or annuity of which the decedent controlled the designation of beneficiary (excluding any benefits under the federal social security system), or any other retirement accounts or contracts, due to the death of a spouse.
d. The surviving spouse’s right to claim an “elective share” pursuant to G.S. 30‑3.1 through G.S. 30‑33, unless otherwise waived.
(12) Any other factor which the court finds to be just and proper.
(c1) Notwithstanding any other provision of law, a second or subsequent spouse acquires no interest in the marital property and divisible property of his or her spouse from a former marriage until a final determination of equitable distribution is made in the marital property and divisible property of the spouse’s former marriage.
(d) Before, during or after marriage the parties may by written agreement, duly executed and acknowledged in accordance with the provisions of G.S. 52‑10 and 52‑10.1, or by a written agreement valid in the jurisdiction where executed, provide for distribution of the marital property or divisible property, or both, in a manner deemed by the parties to be equitable and the agreement shall be binding on the parties.
(e) Subject to the presumption of subsection (c) of this section that an equal division is equitable, it shall be presumed in every action that an in‑kind distribution of marital or divisible property is equitable. This presumption may be rebutted by the greater weight of the evidence, or by evidence that the property is a closely held business entity or is otherwise not susceptible of division in‑kind. In any action in which the presumption is rebutted, the court in lieu of in‑kind distribution shall provide for a distributive award in order to achieve equity between the parties. The court may provide for a distributive award to facilitate, effectuate or supplement a distribution of marital or divisible property. The court may provide that any distributive award payable over a period of time be secured by a lien on specific property.
(f) The court shall provide for an equitable distribution without regard to alimony for either party or support of the children of both parties. After the determination of an equitable distribution, the court, upon request of either party, shall consider whether an order for alimony or child support should be modified or vacated pursuant to G.S. 50‑16.9 or 50‑13.7.
(g) If the court orders the transfer of real or personal property or an interest therein, the court may also enter an order which shall transfer title, as provided in G.S. 1A‑1, Rule 70 and G.S. 1‑228.
(h) If either party claims that any real property is marital property or divisible property, that party may cause a notice of lis pendens to be recorded pursuant to Article 11 of Chapter 1 of the General Statutes. Any person whose conveyance or encumbrance is recorded or whose interest is obtained by descent, prior to the filing of the lis pendens, shall take the real property free of any claim resulting from the equitable distribution proceeding. The court may cancel the notice of lis pendens upon substitution of a bond with surety in an amount determined by the court to be sufficient provided the court finds that the claim of the spouse against property subject to the notice of lis pendens can be satisfied by money damages.
(i) Upon filing an action or motion in the cause requesting an equitable distribution or alleging that an equitable distribution will be requested when it is timely to do so, a party may seek injunctive relief pursuant to G.S. 1A‑1, Rule 65 and Chapter 1, Article 37, to prevent the disappearance, waste or conversion of property alleged to be marital property, divisible property, or separate property of the party seeking relief. The court, in lieu of granting an injunction, may require a bond or other assurance of sufficient amount to protect the interest of the other spouse in the property. Upon application by the owner of separate property which was removed from the marital home or possession of its owner by the other spouse, the court may enter an order for reasonable counsel fees and costs of court incurred to regain its possession, but such fees shall not exceed the fair market value of the separate property at the time it was removed.
(i1) Unless good cause is shown that there should not be an interim distribution, the court may, at any time after an action for equitable distribution has been filed and prior to the final judgment of equitable distribution, enter orders declaring what is separate property and may also enter orders dividing part of the marital property, divisible property or debt, or marital debt between the parties. The partial distribution may provide for a distributive award and may also provide for a distribution of marital property, marital debt, divisible property, or divisible debt. Any such orders entered shall be taken into consideration at trial and proper credit given.
Hearings held pursuant to this subsection may be held at sessions arranged by the chief district court judge pursuant to G.S. 7A‑146 and, if held at such sessions, shall not be subject to the reporting requirements of G.S. 7A‑198.
(j) In any order for the distribution of property made pursuant to this section, the court shall make written findings of fact that support the determination that the marital property and divisible property has been equitably divided.
(k) The rights of the parties to an equitable distribution of marital property and divisible property are a species of common ownership, the rights of the respective parties vesting at the time of the parties’ separation.
(l) (1) A claim for equitable distribution, whether an action is filed or not, survives the death of a spouse so long as the parties are living separate and apart at the time of death.
(2) The provisions of Article 19 of Chapter 28A of the General Statutes shall be applicable to a claim for equitable distribution against the estate of the deceased spouse.
(3) Any claim for equitable distribution against the surviving spouse made by the estate of the deceased spouse must be filed with the district court within one year of the date of death of the deceased spouse or be forever barred. (1981, c. 815, s. 1; 1983, c. 309; c. 640, ss. 1, 2; c. 758, ss. 1‑4; 1985, c. 31, ss. 1‑3; c. 143; c. 660, ss. 1‑3; 1987, c. 663; c. 844, s. 2; 1991, c. 635, ss. 1, 1.1; 1991 (Reg. Sess., 1992), c. 960, s. 1; 1995, c. 240, s. 1; c. 245, s. 2; 1997‑212, ss. 2‑5; 1997‑302, s. 1; 1998‑217, s. 7(c); 2001‑364, ss. 2, 3; 2002‑159, s. 33; 2003‑168, ss. 1, 2; 2005‑353, s. 1; 2011‑284, s. 51.)

Homosexuality Not A Reason to Deny Child Custody

Angela McIlveen — Wed, 15 Feb 2012 14:38:10 +0000

In Pulliam v. Smith, 348 N.C. 616, 501 S.E.2d 898 (1998), the North Carolina Supreme Court held that the homosexual parent is entitled to the same consideration as the heterosexual parent in decisions on custody and visitation. A parent’s homosexuality by itself should not be an issue unless it can be demonstrated that the child will be adversely affected if left in the custody or care of the homosexual parent. However, Pulliam the supreme court seized on the fact that the homosexual parent was not married to his life partner in deciding to remove the child from the home. The court also noted that there were pictures of drag queens in the house and found these to be “admittedly improper sexual material in the home.”

Other North Carolina appellate cases dealing with homosexuality and child custody include Spence v. Durham, 283 N.C. 671, 198 S.E.2d 537 (1973); Newsome v. Newsome, 42 N.C. App. 416, 256 S.E.2d 849 (1979); and Woodruff v. Woodruff, 44 N.C. App. 350, 260 S.E.2d 775 (1979).

Do Women Still Have an Advantage in NC Child Custody Cases?

Angela McIlveen — Wed, 15 Feb 2012 14:30:31 +0000

I get asked this question all the time by men trying to figure out whether or not the judge is going to give their wife preferred treatment in a child custody trial and my answer is sometimes but not for the reason you think. The judges in our area are not pro mom at least they aren’t anymore. Many people, like myself were mainly raised by their fathers and they turned out just fine. The reason that women sometimes have the upper hand in child custody cases isn’t because of their gender, rather it is because they have been the one primarily taking care of the children while the couple was married. If you are a dad that works 80 hour weeks and you don’t know who your children’s doctor is or the name of their teachers at school, then yes your wife will likely win primary custody and you will get visitation. If the shoe is on the other foot and dad, you are the one that is doing most of the child care in your house then it is very likely that you will be the one with primary custody. The bottom line for our judges is what is best for the kids and that usually means keeping the status quo. If you are about to head for divorce court and you want your children rethink your lifestyle and spend more time with your kids. Not only does this increase the chances that you will get custody or at least more visitation time but it is also good for your children. This is what I call a win-win (which rarely happens in divorce cases)!

Check out our section on child custody http://www.mcilveenfamilylaw.com/caseswehandle/child-custody-and-support/

You can also calculate NC child support using our FREE child support calculator. It even lets you print the results to the proper North Carolina child support form. http://www.mcilveenfamilylaw.com/caseswehandle/child-custody-and-support/free-child-support-calculator/

I Can’t Pay My Child Support Payments- Now What?

Angela McIlveen — Wed, 15 Feb 2012 14:18:06 +0000

If you have been laid off from your job or you have changed jobs and you now make less than you did when your child support payments were set, you may be able to ask the court to lower your payments. In N.C. child support payments can always be changed regardless of whether you are paying under a court order or by agreement. The general rule for reducing the amount you pay is that your income must be 15% lower now than it was when the payments were agreed to or ordered. The important thing to do is not get behind in your payments. If you see that you aren’t going to be to able to make your child support payments you need to quickly get an attorney to help you petition the court to modify your payments. Call us at (704) 865-9011 to find out how we can help you.

Name Change Form

Angela McIlveen — Wed, 25 Jan 2012 14:02:37 +0000

Name Change Form

Equitable Distribution Affidavit

Angela McIlveen — Fri, 20 Jan 2012 18:36:08 +0000

Equitable Distribution Affidavit Form

Cover Sheet For Child Support

Angela McIlveen — Fri, 20 Jan 2012 18:20:46 +0000

Cover Sheet for Child Support Cases

Judgment for Absolute Divorce

Angela McIlveen — Fri, 20 Jan 2012 15:50:15 +0000

Judgment for Absolute Divorce

What is Divorce From Bed & Board?

Angela McIlveen — Thu, 19 Jan 2012 13:53:37 +0000

Divorce from bed and board is a fault based divorce that really isn’t a divorce at all but rather is a legal separation. Normally, a complaint for divorce from bed and board is brought when both parties are still living together and one party is having an affair, abusive, or using drugs and the innocent spouse wants the at fault spouse out of the house. If brought at the same time as claims for custody, child support, and distribution of property, a judicially ordered separation pursuant to the prayer for divorce from bed and board establishes the separation required for those other actions. Those actions, including getting your actual divorce requires that you and your spouse are separated for one year. The complaint for divorce from bed and board must be verified and it must contain the required allegations of residency.

The complainant must establish at least one of the six fault grounds enumerated in the statute: abandonment, malicious turning out of doors, cruel or barbarous treatment, indignities, excessive use of alcohol or drugs rendering the condition of the other spouse intolerable, or adultery. The spouse seeking the divorce must also allege that he/she did not provoke the other spouse’s misconduct. The right to jury trial in an action for divorce from bed and board is governed by the statutory provision permitting a jury to make the factual findings on issues of fault. The spouse filing the complaint must prove the allegations by greater weight of the evidence.

The defenses to divorce from bed and board are the same as those for alimony.

The main reason a divorce from bed and board is filed is to get the offending spouse out of the house. A divorce from bed and board “suspends the effect of the marriage as to cohabitation, but does not dissolve the marriage bond.” The divorced spouse loses the rights enumerated in Section 31A-1(b) of the North Carolina General Statutes.

Petition for Registration of Foreign Child Custody Order

Angela McIlveen — Tue, 17 Jan 2012 02:08:38 +0000

Petition for Registration of Foreign Child Custody Order