Published on:

Equitable Distribution: When is Equal not Equitable?

Either party in a divorce can request equitable distribution, but that request must be made before the divorce is final.[1]

Equitable distribution is the process in which the court determines how best to divide the spouses’ assets and debts, specifically their marital property and divisible property.[2] This is often a preferred method when there are significant assets, numerous financial accounts, or multiple pieces of real property.

Equitable distribution does not necessarily mean that property will be divided equally, although that is an option. The judge will consider factors like the length of the marriage, the age and health of the spouses, and the income and earning potential of both spouses to decide how to divide the property.

The court may determine that the most equitable division is not an even 50/50 split, and it is not uncommon for the final decision to divide the assets and debts unequally.

Mosiello v. Mosiello

In Mosiello[3], the trial court awarded an unequal division of the parties’ property following the equitable distribution proceedings. Husband appealed the decision based on the following factors:

  • The court abused its discretion in determining equitable distribution
  • The court failed to support its findings of facts with sufficient evidence
  • The court prejudiced him by delaying the order’s entry

Trial courts have the discretion to distribute marital property, so the appeals court will only reverse such a decision if that discretion is abused. In Mosiello, the Court of Appeals determined that the lower court did not abuse its discretion and that the trial court reached a “well-seasoned decision that was not arbitrary.”[4]

For Husband’s second claim regarding failure to support findings of fact, the appeals court determined that no abuse of discretion existed. Again, the trial court has the discretion to make such decisions, and they can only be overturned if abuse occurs.

Husband’s final claim of prejudicial delay states that the trial court did not enter the equitable distribution order for 15 months after the hearing. The Court of Appeals must consider matters of prejudicial delays on a case-by-case basis.[5] While a delay of 15 months did occur and may have been significant, the appeals court determined that it did not prejudice Husband.

Equitable distribution decisions may seem to one spouse to be unfair when an even split is not ordered. However, the purpose of equitable distribution is to determine a fair and just division of assets and debts, and fair does not always mean equal. Sometimes, like in the Mosiello case and numerous other divorce cases in North Carolina, an equitable division is unequal.

The Greensboro divorce lawyers at the Woodruff Family Law Group can help you file for equitable distribution to ensure the deadline is not missed and your property is divided in a way that is fair to you and your spouse.

[1] NC Judicial Branch. Separation and Divorce.

[2] NC General Statue § 50-20.

[3] Mosiello v. Mosiello. No. COA21-734.

[4] Id.

[5] Britt v. Britt, 168 N.C. App. 198, 202, 606 S.E.2d 910, 912 (2005).