Articles Tagged with Equitable Distribution

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Harris v. Harris, 352 S.E.2d 869, 84 N.C.App. 353 (N.C. App. 1987)

In the case above, the plaintiff was ordered to pay to defendant an Equitable Distribution (ED) distributive award in the amount of $23,706.82, but payment of the award was postponed until the parties’ youngest child reached age 18 or graduated from high school. The Court of Appeals reversed because, at the time, such a postponement would have extended the distributive award to seven years after the termination of the marriage. This was significant, as the court is not to order a distributive award that would be paid “over such an extended time period that the payment thereof will be treated by the Internal Revenue Service as ordinary income.” Here, the courts look to IRS regulations to prevent taxes on the transfer of property incident to divorce, and IRS rules say gains or losses that result from transfers are not treated as ordinary income if they relate to the cessation of the marriage. However, if a transfer occurs more than six years after the termination of the marriage, one presumes it is not related to the cessation of the marriage. 26 CFR § 1.1041-1T.  That would be rebuttable but involves more work. Continue reading →

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Salvadore v. Salvadore, 2021-NCCOA-680 (2021 unpublished)

  • Facts: Wife and Husband married in 1989. During their marriage, Husband would frequently change his job. Husband had a peculiar habit every time he changed jobs that required relocation to another state. He would stay in hotels and campgrounds in the new state while Wife would stay at the marital residence at the old state. Husband would also regularly return to the marital residence on weekends. This would continue until the couple bought a new home in the new state. When Husband accepted a new job in New York, he continued this habit. However, before he left, he asked for a separation on April 17, 2017. But true to habit, he stayed in hotels in campgrounds in New York, while returning to the marital residence in North Carolina on weekends. This happened until July 16, 2017—the last night he spent in the marital residence with Wife. As part of his appeal of an equitable distribution order, he argued that the date of separation should have been April 2017, not the July 2017 date.

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ZIMMERMAN V. ZIMMERMAN 2021-NCCOA-485

Previously, we have written about the use of stipulations in a case to maximize efficiency and what is required in an oral stipulation in the context of Equitable Distribution. (Our courts have held, for an oral stipulation on Equitable Distribution to be valid, that the parties must be read the terms of the stipulation and questioned as to whether they understand the legal effect of the agreement and then agree. McIntosh v. McIntosh, 328 S.E.2d 600, 74 N.C. App. 554 (N.C. App. 1985)). Continue reading →

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Wall v. Wall, 536 S.E.2d 647, 140 N.C. App. 303 (N.C. App. 2000)

There are various legal mechanisms by which former spouses separate their personal and real property. One mechanism is Equitable Distribution (ED). Practically speaking, however, no division of property should be accomplished without first obtaining an Order/Judgment from the court. This is especially true for more valuable and unique assets like real property. So what happens if you have your hearing, but don’t get an Order in a timely manner? Continue reading →

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Divorces among the stars continue to spark gossip throughout Hollywood, but recent developments in Kelly Clarkson’s divorce from Brandon Blackstock are turning heads.  The couple divorce papers were filed in June of 2020, after seven years of marriage.  Blackstock served as Clarkson’s talent manager during the marriage.  Recent reports note that he is opting for a post-divorce life out of the limelight by becoming a full-time rancher on the former couple’s ranch in Montana. Continue reading →

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In North Carolina, a stipulation, in the legal context, is an agreement between the parties in a lawsuit. It is most commonly used by parties to extend deadlines for responding to discovery or to agree on a factual finding that is uncontested. It can be done to minimize costs in litigation, because there is no need to spend time proving something that is agreed upon. Good practice dictates that stipulations are written and signed by the parties and/or attorneys and then presented to the court. Continue reading →

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Desai v. Desai, No.COA20-435 (July 2021) (unpublished)

An interim distribution is an order of the court that can be entered anytime after the filing of the equitable distribution (ED) claim and before the final judgment on equitable distribution. In these interim orders, the court can classify, value, and distribute certain assets or debts. This partial distribution can also provide for a distributive award that one party pays the other in exchange for the distribution of an asset or debt. So how does this affect the final judgment? Below is a case that explains simply what should happen. Continue reading →

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Unpublished Opinion – No. COA19-566

 

Carmen Cousin and Terry Cousin were married for seventeen years.  They separated in May 2016.  Upon separating, Carmen filed a complaint, which included a claim for equitable distribution.  Terry then filed an answer, which included a counterclaim for equitable distribution.  In the final equitable distribution order entered by the court in July 2018, the court assigned a value of $26,070.00 to the parties’ 1965 Lincoln Continental.  The court considered evidence showing the car to be fully restored, thus assigning it that value.  Furthermore, the court awarded Terry the parties’ Myrtle Beach property and ordered him to refinance the mortgage into his sole name before receiving the deed from Carmen.  Terry timely appealed this equitable distribution order.  Continue reading →

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Recently, I have been giving thought to how increases in separate property values through the active work of a spouse is considered during equitable distribution. As a refresh, the goal of a trial court in divorce is to classify all property owned on the date of separation, value it, and then distribute it between the parties; only marital property is distributed. Generally, increases in value to separate property during the course of a marriage are still separate property. However, the analysis does not end there. Continue reading →

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Dechkovskaia v. Dechkovskaia, 232 N.C. App. 350 (2014)

Equitable Distribution is a mechanism by which former spouses separate their personal and real property. Sometimes the spouses may have some marital (or divisible) interest in a third party’s property. One example is when a couple resides at one spouse’s parent’s residence, and the spouses make some improvement on the land that increases property value. That likely creates an interest in the improvement on the home, which can be attributed to one or both spouses in some manner. Continue reading →