Board Certified Family Law Specialist Matt Arnold answers the question: ” Is there some property that the judge cannot divide?”
Dividing the marital home is one of the most complicated parts of a divorce for two reasons. First, the home is usually the married couple’s most valuable asset. Second, partners may have a hard time splitting the marital residence because of the deep emotional attachment to the home.
It is advised to retain a skilled family lawyer in North Carolina to determine who gets the house in your divorce case. Contact our attorneys at Arnold & Smith, PLLC to protect your legal rights and ensure a fair division of assets and debts in your divorce.
Who Will Get the House in Your Divorce?
When it comes to determining who gets the house in a divorce, it is vital to understand whether the home will be classified as a:
- Marital home;
- Separate asset; or
- A combination of separate and marital assets.
N.C.G.S. § 50‑20, also known as North Carolina’s equitable distribution law, defines “marital property” as any personal or real property, including a house, acquired by the spouses during the course of the marriage.
The marital home – or any other marital assets, for that matter – can be divided between the spouses by reaching an agreement out of court or through the court process, which is known as equitable distribution.
What Happens to the Marital Home After a North Carolina Divorce?
Our North Carolina divorce attorneys at Arnold & Smith, PLLC see three common scenarios that arise when a married couple is trying to divide the marital home.
1. One spouse moves out, while the other spouse remains in the house
If the spouses are able to reach an agreement without resorting to litigation, they may agree that one spouse will move out while the other spouse will remain in the marital home.
It is important to seek legal counsel from a knowledgeable divorce attorney in North Carolina to help decide who stays and who leaves and negotiate a mutually acceptable agreement.
2. The spouses decide to sell the marital home
In many divorce cases, selling the marital home is the most appropriate decision, especially if neither spouse wants to stay in the house and/or the parties cannot afford to “buy out” the other spouse’s interest in the marital residence.
3. No agreement is reached or neither spouse wants to move out
Often, both parties wish to stay in the marital home during and after a divorce. If the spouses cannot reach an agreement on who will stay and who will leave, they may consider the following options:
- Go to court. As mentioned earlier, marital property in North Carolina is divided between the parties based on the equitable distribution statute. However, parties are required to live separate and apart for 12 months in order to initiate the divorce proceedings, according to C.G.S. § 50-6. However, you may be able to get a divorce in NC without waiting a year.
- Obtain a divorce from bed and board. This is a court-ordered decree of legal separation that requires the filing party to prove the other spouse’s marital fault. The filing spouse can get the right to stay in the house and evict their soon-to-be-ex-spouse.
- Get a domestic violence protective order. If your divorce case involves domestic violence, you may be able to request a protective order to be granted temporary possession of the marital home.
It is important to discuss your unique situation with a North Carolina divorce lawyer to determine who gets what in your divorce case. Contact our lawyers at Arnold & Smith, PLLC to make sure that your legal rights are protected when dividing the marital home. Get a phone or video consultation by calling at (704) 370-2828 to speak with our detail-oriented and well-versed lawyers with offices in Charlotte, Lake Norman, and Monroe, please contact Arnold & Smith, PLLC today 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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