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Rech Law, P.C. Rech Law, P.C.
Charlotte 704-659-0007 Monroe 704-228-4488 Cornelius 704-228-2790

Who Gets the House in a Divorce in North Carolina? Pt. 1

The prospect of a marriage ending can be difficult on a deeply emotional level. A divorce can become even more daunting when you consider how much of your world will be turned upside down. In many cases, the fate of your home is right at the heart of those concerns. Will you be able to stay in the house? If so, at what cost?

It isn’t always easy to say who will get the house in a divorce because it will depend on several factors. Those factors start with defining what type of property it is, legally speaking.

Types of Property in a North Carolina Divorce

All the property you and your spouse own–from the house to the cars to the retirement accounts and everything in between-- will first be classified in one of three ways:

  1. Separate Property–This is property you brought into the marriage. Anything you owned before the wedding date and still own today is considered separate. This category also includes gifts you may have received during the marriage, an inheritance being a prime example.
  1. Marital Property–This is property that you and your spouse acquired together during the time of your marriage. A good example might be the furniture set you bought together.
  1. Divisible Property–This is marital property that will appreciate or depreciate after the point of divorce. A common example would be stocks acquired during the marriage that have vesting options ten years down the line.

For the purposes of deciding who gets the house in a North Carolina divorce, the first two types of property–separate and marital–draw the focus.

Anything categorized as your separate property is yours. Anything that is marital property must be shared equally. It seems simple enough so far. If one of you owned the house prior to the marriage and you’re still living there, then that person gets to keep it, right? That might be the outcome, but it’s not automatic.

Furthermore, it doesn't answer the question of what happens to the house if it is classified as clear-cut marital property. To understand all the variables in determining who–if anyone–gets the house and how it will impact the rest of the settlement, it’s a good idea to step back and get a clear understanding of how property division works in the state of North Carolina.

North Carolina Property Division Principles

North Carolina is one of 41 states that use the principle of equitable distribution for dividing property in a divorce. That means property does not have to automatically be split on a 50/50 basis.

Equitable distribution merely means the settlement should be considered “fair.”

There are no hard and fast rules as to what constitutes fairness. If your settlement cannot be negotiated in mediation with your spouse and goes in front of a judge, then that particular judge’s definition of fairness will become quite important

A judge will use several factors outlined in North Carolina law to determine what distribution is equitable in your case. For our immediate purposes, let’s focus on two facts:

  1. The first is that how property is classified–either separate or marital–will play a significant role in the settlement.
  1. The second is that even though a 50/50 split is not mandated under equitable distribution, judges still start with the presumption that an even split is what will be equitable. If you (or your spouse) want more than half of the assets, it’s up to you to prove why that’s fair.

Taking the Next Step to Protect Your Home

Now that you understand the basic principles that determine property division in North Carolina, you can begin to think through what may happen to your home in your divorce. However, nothing is set in stone, and independent research is rarely as valuable as personalized legal advice. If you’re going through a divorce, make sure you reach out to an attorney you can trust.

Call (704) 659-0007 to get in touch with our team at Rech Law, P.C. today.

Want to learn more about how North Carolina law determines property division of a home in a divorce?
Read Who Gets the House in a Divorce in North Carolina? Pt. 2 here.