Becker Williams, F. Supp. 3d , 2016 WL 878492 (W.D. Wash. 2016)
Facts: Husband and wife were married and in 2002, the husband designated the wife as survivor beneficiary of his retirement plans with Xerox. Continue reading →
Suppose you inherit money from a family member during your marriage. Is your inheritance subject to being divided under North Carolina’s equitable distribution statute? The brief answer: it depends.
North Carolina General Statute § 50-20 defines marital property as all real and personal property obtained and currently owned by either or both spouses during the marriage and before the date of separation unless that property is determined to be separate or divisible property. Separate property under N.C.G.S. §50-20 is real and personal property acquired by a spouse before or during the marriage through devise, descent, or gift. Applying the definitions of marital and separate property from N.C.G.S. § 50-20, any money or property you inherit from a family member would be separate property. Continue reading →
Let’s suppose that you provided funds, checks, cash, or other payments to your ex since separation. You have a claim pending for equitable distribution, which seeks to divide your marital property. But court is slow and it can take some time for the court to reach your case. When it does, how should the court treat those payments you made? Were they gifts, or were they something the court ought to consider in equitable distribution? Continue reading →
Hicks v. Hicks, 2022-NCCOA-139.
Facts: Plaintiff and Defendant attended a mediation to attempt to settle the Equitable Distribution and alimony parts of their case. In mediation, they reached a settlement and memorialized their terms in a consent order, entered in September of 2018. Among those terms, Defendant received a parcel of land with a requirement to refinance the loan to remove Plaintiff’s name and debt. Defendant also received another parcel of land, with a similar refinance provision. Finally, the consent order provided that Plaintiff shall pay a distributive award to Defendant for $87,500, on or before January 1, 2019. Defendant was having difficulty refinancing the loans on the parcels he received. Plaintiff’s counsel reached out the Defendant’s new counsel to discuss the issue of the loans, but then noticed that “Plaintiff” and “Defendant” on the distributive award provision were interchanged (the parties agreed that Plaintiff would be receiving the award). Plaintiff thus filed a Rule 60 motion on April 15, 2020, requesting that the court correct a clerical mistake under 60(a) or such other justifiable relief under 60(b)(6). Plaintiff and her attorney testified that it was the mutual agreement that Plaintiff receive the award, and Defendant pay it. The trial court granted relief under 60(b)(6) and amended the typo. Defendant appeals. Continue reading →
Shropshire v. Shropshire, 2022-NCCOA-441.
Plaintiff and Defendant separated and initiated a case for Equitable distribution (ED). Pursuant to a pretrial Order, the parties filed affidavits for the ED trial. Both parties listed retirement plans under the “marital property” section of the affidavit. This included the Plaintiff’s 401(k) plan. Furthermore, both parties designated that Plaintiff’s retirement plans had values to be determined for date of separation and “net” value. Under the section of the affidavit marked for “divisible property,” neither party listed any property.
In a hearing in August of 2018, the parties testified about ED. In October 2018, the trial court judge told the parties that evidence was going to be reopened so that evidence could be presented that showed the date of trial values for the retirement plans, as well as value of the marital residence. Plaintiff objected to the reopening and filed a motion to recuse.
The motion was denied in trial court and the reopening was allowed. The information was provided over objections, and a final ED order was entered. Plaintiff appealed. Continue reading →
Wright v. Wright, 222 N.C. App. 309, 730 S.E.2d 218 (2012)
Dozier v. Dozier, 2022-NCCOA-307 (unpublished) (2022)
In North Carolina, an Equitable Distribution (ED) judgment is a final court-ordered distribution of the marital assets. Unlike child support, alimony, or custody, these are not modifiable upon showing the court that there has been a substantial change in circumstances. A rule 60 motion is one that is essentially asking the court for relief from the judgment entered. There are many grounds for asking relief. In an interesting twist, one party sought to void one particular section of an ED judgment, rather than the whole thing.
In the previous blog, we covered appraisal as a method of valuation of property in the context of Equitable Distribution in a separation. Equitable Distribution (ED) in North Carolina is a legal process by which the court divides the marital property between the parties. The three steps in an ED determination are classification, valuation, and distribution, and today we continue with a look at valuation.
Equitable Distribution in North Carolina is a legal process by which the court divides the marital property between the parties. It involves three steps: 1) classifying the property as marital or separate (or some mix); 2) assigning value to the property; and 3) distributing the property in an equitable manner between the parties. We have written a lot with emphasis on the first step of the analysis, classification. This makes sense in that the court will only distribute marital assets and not touch the separate. So today we will talk about the second step, valuation.
Foxx v. Foxx, 2022-NCCOA-223 (5 April 2022) (unpublished).
Some statutes and case laws in North Carolina have a time component. In modifications of child support and custody, the trial court is sometimes required to make comparisons between the old facts and circumstances with the current ones in order to find whether there has been a substantial change in circumstances. Sometimes the old facts and circumstances just don’t exist because the prior order was a consent order. In these cases, trial courts ought to make findings about the facts in play at the time of the prior order, so as to make acceptable comparisons. In equitable distribution, one such statute asks the court to compare the income and estates of the parties at the time of the division of property. Again, it asks for a comparison at a specific point in time. Below is a case where the trial court did not make such comparison. Continue reading →
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