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PROPERTY SETTLEMENT & EQUITABLE DISTRIBUTION

One of the major undertakings you will deal with in the course of your divorce is dividing the assets and debts accumulated over the course of your marriage. This process is formally known as Equitable Distribution. It can be emotionally overwhelming to learn how intertwined your marital assets are with your spouse. You can alleviate much of the anxiety and stress associated with division of your marital property through knowledgeable legal advice. An experienced attorney can assist you in equitably dividing the marital assets in an efficient manner so you are not left feeling financially vulnerable. 

Is a court proceeding necessary for Equitable Distribution?

Most couples are able to reach an agreement on how to divide their property in a private contract, such as a separation and property settlement agreement.  These agreements are also enforceable by the courts. In cases where an agreement cannot be reached, North Carolina courts will divide the marital estate through an equitable distribution action. It is always in your best interest to resolve disputes if common ground can be found. When these decisions are left up to the court, equitable doesn’t necessarily mean an equal division. The court will attempt to make the division fair to both parties, depending on the specific circumstances of the case, and this can mean an award of an unequal division of property to one party.  In cases where an agreement is not possible, for whatever reason, our family law attorneys are experienced trial lawyers and will advocate on your behalf to ensure you receive a fair division of property. 

How is Equitable Distribution accomplished?

A knowledgeable attorney can assist you through the daunting and complex process of an equitable distribution case. The essential steps that must be taken to divide property include: 

  1. Identify all assets and debts that existed at the time of separation; 
  2. Classify all the identified property as marital, separate or mixed; 
  3. Value all identified property; and 
  4. Distribute the property. 

What are marital assets?

Marital assets are not limited to homes and automobiles and will include retirement and investment accounts, life insurance policies, pensions, stocks, bonds, annuities, business interests, and even military benefits.  Debts are also considered in the marital estate and will include mortgages, lines of credit, credit cards, student loans, other loans as well as any amounts borrowed against retirement accounts or insurance policies. 

Generally all property and debts that are acquired during the marriage are assumed to be marital property, regardless of how the property or debt is titled or who incurred the debt. 

Separate property and debts of a spouse includes property owned and debts accumulated prior to marriage, as well as inheritances and individual gifts. Separate debts can also be acquired during marriage, if the debt was not incurred for the joint benefit of the parties. Separate property and debts generally remains the separate property of that spouse during equitable distribution. 

In the event that funds or assets have been commingled during marriage, we have the tools available to trace those separate funds so they can remain separate from marital property. Careful investigation and planning are required to ensure all the elements of your marital and separate property are considered during your marital property division.

Property Settlement Articles

EQUITABLE DISTRIBUTION

Do I need an attorney?

Division of your marital property is yet another opportunity you will have to create lasting resolutions in your divorce. Agreements relative to distribution of property can vary and can be creatively tailored to your situation. There is generally more than one way to consider this process and the family law and divorce attorneys at GHMA | LAW can help you explore all the options available that meet your goals and protect your interests. In some cases, the advice of a financial expert or tax specialist may be required to ensure that all the available options and consequences are considered, especially in the case of complex divorce. We are able to coordinate the services of these additional experts and ensure that your interests are protected. 

Patrick McCroskey and Janet Amburgey are both board-certified specialists in family law and have worked with hundreds upon hundreds of divorcing spouses through the process of marital property division. They have extensive experience in negotiating settlements and advocating for clients in trial, if necessary.  By providing compassionate and effective counsel they have the skills to assist you through this emotional time to achieve a fair division of property. To ensure that your interests are protected call us for a consultation at 828-258-3368 or use the contact form below to connect with our lawyers today. 

 

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Black and white image of an apple sliced in half with forks protruding from each of the halves denoting equal distribution and splitting of marital property

PROPERTY SETTLEMENT & EQUITABLE DISTRIBUTION

One of the major undertakings you will deal with in the course of your divorce is dividing the assets and debts accumulated over the course of your marriage. This process is formally known as Equitable Distribution. It can be emotionally overwhelming to learn how intertwined your marital assets are with your spouse. You can alleviate much of the anxiety and stress associated with division of your marital property through knowledgeable legal advice. An experienced attorney can assist you in equitably dividing the marital assets in an efficient manner so you are not left feeling financially vulnerable. 

Is a court proceeding necessary for Equitable Distribution?

Most couples are able to reach an agreement on how to divide their property in a private contract, such as a separation and property settlement agreement.  These agreements are also enforceable by the courts. In cases where an agreement cannot be reached, North Carolina courts will divide the marital estate through an equitable distribution action. It is always in your best interest to resolve disputes if common ground can be found. When these decisions are left up to the court, equitable doesn’t necessarily mean an equal division. The court will attempt to make the division fair to both parties, depending on the specific circumstances of the case, and this can mean an award of an unequal division of property to one party.  In cases where an agreement is not possible, for whatever reason, our family law attorneys are experienced trial lawyers and will advocate on your behalf to ensure you receive a fair division of property. 

How is Equitable Distribution accomplished?

A knowledgeable attorney can assist you through the daunting and complex process of an equitable distribution case. The essential steps that must be taken to divide property include: 

  1. Identify all assets and debts that existed at the time of separation; 
  2. Classify all the identified property as marital, separate or mixed; 
  3. Value all identified property; and 
  4. Distribute the property. 

What are marital assets?

Marital assets are not limited to homes and automobiles and will include retirement and investment accounts, life insurance policies, pensions, stocks, bonds, annuities, business interests, and even military benefits.  Debts are also considered in the marital estate and will include mortgages, lines of credit, credit cards, student loans, other loans as well as any amounts borrowed against retirement accounts or insurance policies. 

Generally all property and debts that are acquired during the marriage are assumed to be marital property, regardless of how the property or debt is titled or who incurred the debt. 

Separate property and debts of a spouse includes property owned and debts accumulated prior to marriage, as well as inheritances and individual gifts. Separate debts can also be acquired during marriage, if the debt was not incurred for the joint benefit of the parties. Separate property and debts generally remains the separate property of that spouse during equitable distribution. 

In the event that funds or assets have been commingled during marriage, we have the tools available to trace those separate funds so they can remain separate from marital property. Careful investigation and planning are required to ensure all the elements of your marital and separate property are considered during your marital property division.

Do I need an attorney?

Division of your marital property is yet another opportunity you will have to create lasting resolutions in your divorce. Agreements relative to distribution of property can vary and can be creatively tailored to your situation. There is generally more than one way to consider this process and the family law and divorce attorneys at GHMA | LAW can help you explore all the options available that meet your goals and protect your interests. In some cases, the advice of a financial expert or tax specialist may be required to ensure that all the available options and consequences are considered, especially in the case of complex divorce. We are able to coordinate the services of these additional experts and ensure that your interests are protected. 

Patrick McCroskey and Janet Amburgey are both board-certified specialists in family law and have worked with hundreds upon hundreds of divorcing spouses through the process of marital property division. They have extensive experience in negotiating settlements and advocating for clients in trial, if necessary.  By providing compassionate and effective counsel they have the skills to assist you through this emotional time to achieve a fair division of property. To ensure that your interests are protected call us for a consultation at 828-258-3368 or use the contact form below to connect with our lawyers today. 

 

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Common Questions & Concerns

We will do everything possible to structure your case so that you may obtain the best legal result. Punishing your spouse or winning an all-out, no holds-barred victory, however, is an unrealistic and unattainable goal. Your attorney's job is to represent your best interests, and to achieve the best resolution for you. His job is not to serve as your avenger. He cannot give you retribution for the sins of your spouse. If you enter this process expecting revenge and retribution, you will be sorely disappointed and unhappy with your attorney, yourself, and the outcome of your case, no matter how favorable that outcome may be to you. Before beginning the attorney-client relationship, you should make every effort to put your priorities in order, and realize that there are some things the legal system cannot provide.

Most people share the same fears, questions, and beliefs about divorce. The following are some of the most common of these fears, questions and beliefs.

Click on the titles below to toggle on and off pertinent information.

Emotions

In a domestic dispute, negative emotions such as hostility, anger, and revenge can needlessly delay a resolution and increase the cost. Perspective and objectivity, on the other hand, can promote a conclusion and reduce the cost.

Many factors may be involved in the breakup of your marriage, and you may feel indignation, anger and resentment toward your spouse. You may want to punish your spouse by making the process difficult and time-consuming. This type of thinking usually results in a no-win situation for everyone concerned.

... read more >>>

Reconciliation

Often, a potential client visits an attorney to discuss divorce, although they have not yet made the decision to take the big step. First, they want to know their options. Attorneys typically encourage them to explore alternatives, and often suggest how to protect themselves and meet their needs, short of divorce.

If your attorney raises the issue of reconciliation, he is not questioning or judging your decision. But, it is clarifying and confirming that you know your options, and that you want a divorce.

Your Spouse's Suggestions

The mediator’s role is to move the parties beyond personality clashes and historic grievances. Only then, can the mediator help you improve communication so any future dealings can take place without repeating the difficulties of the past. Mediation is a useful tool because it adds a new dimension to the negotiations. Because the mediator’s purpose is to help guide you to find solutions that you can both agree to, he/she does not have the power to decide your case, or in any other way, act as a judge nor does he/she have a fixed result in mind to urge you toward.

... read more >>>

Your Will

As you begin the divorce process, the first order of business is to review your will. If you do not have one, get one immediately. Succession laws may conflict with your wishes.

You may choose to consult David Hillier, of this law firm, regarding your will, as well as any financial concerns and considerations you may have.

Length of Time

Generally speaking, it is impossible to predict exactly how long the case will take. After the case is under way, and your attorney understands the issues, he will be better able to gauge the duration. How long it will take depends on the following factors:

  • The number and complexity of contested issues;
  • The attitudes of each of the parties, their attorneys, and their inclination to settle;

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What is Mediation?

Mediation is a process in which two or more people involved in a dispute come together voluntarily to try to develop a solution to their problem with the help of a neutral third person (or persons), called the mediator. Unlike a judge or an arbitrator, the mediator does not take sides or make decisions. The mediator, usually trained in conflict resolution, is there to help the disputants evaluate their goals and options in order to formulate their own solution. To achieve the fairest results possible, you both take an active part in your divorce and turn what could be a battle for control into a search for mutually beneficial solutions.

Does Mediation Work?

Mediation can take place over a series of sessions. But, more often than not, it is scheduled for a continuous amount of time to keep the negotiations going. Sessions are generally held in the privacy of the mediator’s office or an attorney’s office, and begin with all involved signing an agreement that the negotiations will be kept confidential. At the end of a successful mediation, the mediator will prepare a Memorandum or writing expressing the agreements of the parties, at least on the issues which were resolved. Any formal agreement will be drafted by your or your spouse’s lawyer.

What to Expect from Your Mediator

The mediator’s role is to move the parties beyond personality clashes and historic grievances. Only then, can the mediator help you improve communication so any future dealings can take place without repeating the difficulties of the past. Mediation is a useful tool because it adds a new dimension to the negotiations. Because the mediator’s purpose is to help guide you to find solutions that you can both agree to, he/she does not have the power to decide your case, or in any other way, act as a judge nor does he/she have a fixed result in mind to urge you toward.

... read more >>>

What are the Benefits of Mediation?

Mediators can increase the likelihood of a negotiated settlement by bringing the skills, creativity, and influence of trained, impartial third parties to bear on the problem. Perhaps more importantly, frequently mediation can save time and money.

Mediation keeps your options open and reduces issues of conflict. Although most who undertake mediation have a successful conclusion, some do not. If mediation doesn’t work, you can still sue and go to court or engage in arbitration.

... read more >>>

Counseling

Domestic disputes are emotionally charged. Clients are encouraged to seek counseling before and during the process. Counseling can help clients to work through their pain, accept the marriage’s end, learn coping skills, and pick up the pieces of their lives and go forward.

Don’t wait for your spouse to agree to participate. Individual counseling can help. Often, children and parents attend counseling together to alleviate the effects of a divorce or custody dispute on the children, and to help the family heal emotionally.

... read more >>>

Practical Matters

Litigation often spawns more litigation. To determine whether certain issues are worth litigating, you must weigh the price you will pay with your time, emotions, and money, against the anticipated outcome and its benefit to you. Again, your attorney will advise you on these matters.

Dating prior to the final divorce: Don’t, unless your attorney has specifically advised you that it is okay.

... read more >>>

Attorney Camaraderie

Attorneys who specialize in Divorce and Family Law will probably try many cases against each other over the years. They will attend the same professional events and, may even work on committees together. Camaraderie develops naturally over the years. Just because your attorney and your spouse’s attorney exchange pleasantries, share a joke, or have lunch together, does not mean that they are being disloyal to their clients. Your attorney is professionally committed to the best result for you given the facts of your case and the law. Being rude, hostile, or mean to opposing counsel does nothing to further your case and generally harms your case rather than helping.

Is Your Attorney Tough Enough?

All too often, the client has the attitude that a lawyer who is a “fighter” is a lawyer who refuses to cooperate with opposing counsel, makes demands and gets instant results, goes to court at the drop of a hat, and plays Perry Mason in court. This notion is sadly misguided.

The time to fight may be during tough negotiations or in court. But, not cooperating on routine matters accomplishes only greatly increased attorney fees because it requires both attorneys to do everything the hard way. Cooperation by the attorneys, as well as the parties, particularly during the discovery phase, is always in the best interest of the client.

Social Media

Social Media is a new facet of communication today. We understand that everyone participates in social media to some degree. When you are involved in divorce proceedings or any type of litigation for that matter, a good general practice is to avoid discussing any element of your case, or your spouse, in any social media forum. All social media is discoverable, and it never goes away. If you are considering divorce or litigation, be very careful what you say in online forums, including email attached to social media sites like Facebook, LinkedIn, and MySpace.

Costs

Just as it is impossible to predict exactly how long your case will take, it is difficult to realistically estimate the total cost of your litigation, even when your attorney knows the issues that will be contested and the strength of the parties’ feelings. If you and/or your spouse have completely lost trust in one another, want complete discovery on all issues, and desire to argue many issues to the bitter end, the process will be long, drawn-out and expensive.   read more >>>

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