Legal Corner: When divorce gets messy, judges divide property

Last week in the Legal Corner, we discussed in some detail ways couples can agree in writing what terms will apply if either party chooses to later separate or get a divorce. But what happens in cases where the parties do not have any agreed terms in writing — and more importantly, are not able to agree on any terms?

This week, let’s cover contested divorces and some factors that the court will address when a judge has to decide the terms of a divorce for the married couple.

A contested divorce occurs when spouses have decided to proceed with the divorce process, but are unable to agree on the terms of the divorce. In most cases, spouses are unable to agree on how to divide their property, custody of their children, and alimony or spousal support. When this situation occurs, the court will step in and make decisions when the spouses are unable to agree.

However, when the court has to take action, the process can sometimes take a lot longer and cost a lot more for both parties. Let’s begin with the issue of property division between the spouses.

Property division is one of the major terms spouses are unable to agree on, and therefore rely on the court to fairly divide the property for both parties. In North Carolina, there are laws that have been established to give the court guidance on the equitable distribution of marital and divisible property. In order for a judge to make such an important decision in compliance with North Carolina law, he or she will first need some very detailed information.

Equitable distribution is the process the court uses to determine what property to divide and how to divide it between the spouses. The first step of the equitable distribution process requires the court to decide, of all the property owned by each spouse, what property is considered marital property and what property is considered separate property. This is an essential step in this process because separate property is considered that individual spouse’s property and will not be considered in the court’s decision.

Martial property is defined as all property, whether real or personal, that was obtained by the spouses together or by either spouse individually during the time of the marriage and prior to the date the parties chose to separate. Marital property can include a house, car, boat, a pension and even a spouse’s retirement fund.

Separate property is defined as all property real or personal that was acquired by either spouse prior to the marriage, and property that has been devised or inherited, or given as a gift to either spouse from a third party during the marriage. Additionally, the increased value of the separate property or any income derived from the property is considered separate property. This means if a spouse is renting his or her property or decides to sell the property and receives a profit, those funds are also considered separate property.

Once all of the spouses’ property has been categorized as marital or separate property, the court will then begin the second step of placing a value on each piece of marital property. This step can sometimes become very difficult when dealing with valuable items, such as collectibles or antiques. When a clear market or net value is unavailable for a particular piece of property the court will sometimes rely on the testimony or information of experts to estimate the value.

The last step of the equitable distribution process involves the actual division of the property. North Carolina law requires the property to be divided fairly, however, this does not always mean equally. The law allows the court to consider certain factors in order to assist in determining how the property should be divided.

Some of the factors that are considered include: the income and debt of each spouse, the length of time the spouses were married, the needs of the spouse taking care of the children and if a spouse is making support payments from a previous marriage. In some cases, the parties in an uncontested divorce are not always satisfied with the court’s final decision. Thus, it is always important for the parties to try to agree without the interference of the court.

Please remember that this information is only meant to inform our readers. This article does not include all of the detailed laws and requirements related to contested divorces in North Carolina. If you have any additional questions about North Carolina laws pertaining to contested divorce and the equitable distribution, please consult an attorney. As always: Be informed. Be prepared.

Bellonora McCallum is an attorney at the McCallum Law Firm, PLLC, in Rockingham. Reach her at 910-730-4064 or visit