Equal or Unequal? Should One Spouse Receive More Than 50% of the Marital Estate?

In actions for equitable distribution, North Carolina law requires that the court distribute the net marital and divisible property equitably between the parties. Equitably, however, does not mean equally.

There is a presumption that an equal division of marital and divisible property is equitable, or fair. However, depending on the circumstances of the case, there are numerous factors that the court can consider in distributing the marital estate unequally between the parties. Some of those factors include the following:

  • the age and physical and mental health of the parties;
  • the duration of the marriage;
  • the need for a spouse with custody of a child to occupy the family home;
  • an obligation of support arising from a prior marriage;
  • the direct or indirect contribution of a spouse to help educate or develop the career potential of the other spouse;
  • the income, assets and debts that the parties individually own at the time the marital and divisible property is distributed;
  • the acts of either party to maintain and preserve marital and divisible property, or to waste, devalue or neglect marital or divisible property, occurring between the date of separation and the date of distribution;
  • the tax consequences to each party that would have been incurred if the marital and divisible property had been sold or liquidated on the date of valuation if such tax consequences are reasonably likely to occur; and
  • any other factor that the court deems just and proper.

Judges in North Carolina are vested with wide discretion in determining the weight that they give to the various factors to support an equal or unequal distribution of the marital and divisible property. Marital misconduct is not a factor that the trial judge considers in making an unequal distribution of marital property unless the misconduct relates to the economic condition of the marriage.

Consideration of the various factors that may support an unequal distribution of the marital estate can often involved complicated issues, such as determining tax consequences or valuing complex business interests. Retaining an experienced and competent family law attorney to represent you throughout the equitable distribution process can be crucial to the outcome of your claim.

This article is for information purposes only and is not to be considered or substituted as legal advice. The information in this article is based on North Carolina state laws in effect at the time of posting.

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