Equitable Distribution, Part 2: Factors and Local Rules

This article is part two in a series on Equitable Distribution. You can read part one here: Equitable Distribution, Part 1: Classifying Property.

In order to provide for a fair and equitable distribution of the parties’ marital and divisible property, it is essential to identify and properly value all property that is subject to division between the parties. Under the local Family Court rules for Buncombe County, North Carolina, in all cases that involve claims for equitable distribution, each party to the action must file an Equitable Distribution Inventory Affidavit, often referred to as an “EDIA,” (Form 10 under the local forms for Buncombe County) together with the accompanying documents listed in the local Family Court rules. This affidavit provides an established format for each party to use in identifying all assets and debts known to them to exist at date of separation. The form and rules can be found online on the North Carolina Judicial Branch website here: Buncombe County Local Rules and Forms. A Final Equitable Distribution Affidavit must be completed and filed with the court prior to a trial on equitable distribution. Look for an upcoming blog post dedicated to the importance of preparing and filing a complete and accurate Equitable Distribution Inventory Affidavit.

Under North Carolina law, mediation is mandatory in cases that involve equitable distribution. The majority of equitable distribution cases filed in Buncombe County are settled outside of court, either through negotiations or mediation.

In actions for equitable distribution, there is a presumption that the court should distribute the net value of the marital and divisible property equally between the parties, unless a judge determines that an equal division is not equitable under the circumstances of that particular case. There are numerous factors that a judge may consider in distributing the marital estate unequally between the parties, including:

· the duration of the marriage;

· the ages of the parties;

· the physical and mental health of each party;

· the need for a spouse with custody of a child to occupy the family home;

· the contribution of a spouse to help educate or develop the career of the other spouse;

· acts of either party to maintain, preserve, or develop; or to waste, neglect, and/or devalue any marital property or divisible property during the period after separation and prior to the time of equitable distribution; and

· the assets and debts that are owned individually at the time the marital and divisible property is distributed.

The assets and debts that you receive through the equitable distribution process can lay the foundation for your post-divorce lifestyle and future financial security. Therefore, it is in your best interest to have a knowledgeable and experienced family law attorney representing you throughout the equitable distribution process to ensure that your legal and financial interests are protected. Retirement accounts or pension plans often represent some of the parties’ most valuable assets. However, failure to identify and/or properly evaluate a business interest, retirement plan, pension plan, or any other asset, could mean that you receive significantly less then you are entitled to receive, or your interest in such asset could be forfeited or compromised.

The attorneys at Siemens Family Law Group represent clients in all matters related to divorce, including equitable distribution. Our legal acumen and attention to the fine details of family financial matters can make a significant difference in the outcome of your case. We have a solid commitment to client satisfaction and will work with you to help you achieve your goals and resolve your legal matters in a favorable and expeditious manner. Through years of experience, we have developed a network of qualified professionals, including CPAs and business valuators, to assist in valuations and tax-related matters. These professionals may also be helpful in testifying as expert witnesses in court or at a deposition regarding their business valuations or other matters for which they have been retained. Whether your equitable distribution matter is resolved through informal negotiations or mediation and you are in need of a well crafted separation and property settlement agreement, or you are in need of a formidable trial attorney, you can count on the attorneys at Siemens Family Law Group to provide you with effective and strategic legal representation.

Jim Siemens

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