Board Certified Family Law Specialist Matt Arnold answers the question: ” Is there some property that the judge cannot divide?”
When couples are considering, or pursuing a divorce, there is a lot of discussion on the distribution of property between the couple. Is everything split down the middle? Is one spouse entitled to more of the assets than the other? What exactly are the property or assets that need to be divided? The assets and property that people most think of in divorce are homes, cars, and monetary assets. However, for some couples there are other types of property that must be considered. Personal injury settlements can become a contentious point in a divorce. To determine what happens to those settlements, you must first look at the way that property is classified by family law.
North Carolina is an equitable distribution jurisdiction. This means that, unless otherwise stated, property should be split equally. Equal division is the standard for fairness. However, there are situations in which property is not equal and does not have to be equally divided among spouses. There are three classifications of property that can come about in divorce. North Carolina statute states the three types of property are marital, separate, and divisible.
- Marital property is the property, including both real and personal property, that is acquired by the couple during the marriage. The property must be acquired before the date of initial separation in order to fall under marital property. Unless it otherwise falls under some type of exemption, property acquired during the marriage is marital property. Marital property is divided between the spouses during a divorce.
- Separate property is property that is owned by one spouse before the marriage. This can also be property that is given as a gift during marriage. Separate property remains with the spouse who owns the property.
- Divisible property is the appreciation or dimmunation of marital property, property acquired after separation but with efforts that date before separation, passive income, and passive increases and decreases of marital debt.
Personal Injury Settlements
Now that you understand the different classifications of property, we can examine the treatment in personal injury terms. Unfortunately, the treatment of a personal injury settlement in a divorce is highly dependent on the facts of the case. If the settlement award is at issue in the case, the court can look to a variety of factors to make a determination. The court can look to the type of damages that were awarded – pain and suffering, property damages, wages, or loss of companionship. If the personal injury settlement can be linked to both spouses, it might be more likely that the amount would be split. North Carolina courts have looked to the types of damages awarded in the past as seen in the court case Dunlap v. Dunlap.
If you are worried about your personal injury settlement in a divorce, you need a divorce attorney who will aggressively fight for your property. The family law attorneys at Arnold & Smith, PLLC are here to help you with you divorce. We know that this can be a confusing time. Leave the stress to us as we help you transition into a new part of your life. Contact us today to find out how we can help. If you find yourself facing a complicated family law matter and need the help of experienced family-law attorneys in or around Charlotte, Lake Norman, or our new office in Monroe (by appointment only until 2019), please contact Arnold & Smith, PLLC today at (704) 370-2828 or find additional resources here.
The family law practice group at Arnold & Smith, PLLC includes two Board-Certified Family Law specialists and one Child Welfare Law specialist, as well as several attorneys with many years of family law experience that are committed to providing a powerful voice to individuals facing the often-tumultuous issues in this area of law. The range of issues our family law clients may be facing include pre- and post-nuptial agreements; separation agreements; post-separation support; child support (both temporary and permanent); absolute divorce; divorce from bed and board; military divorce; equitable distribution of assets; child custody (both temporary and permanent); retirement benefits and divorce; alimony and spousal support; adoption; and emancipation. Because this area of the law is usually emotionally charged and complicated, the family law attorneys at Arnold & Smith, PLLC act with the utmost dedication to ensure that each client understands his or her options, and then act to achieve the best result possible for that client’s particular situation.
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