Jurisdictional Issues and Equitable Distribution

Question 1

SMJ for divorce

Answer 1

At least one NC resident for at least 6 months

Question 2

PJ for divorce

Answer 2

Long arm statute jx over a party to a marriage that arises out of NC, as long as other party still residing in state.

If PJ over both spouses; court can determine all issues relating to divorce. But if PJ only on 1 spouse, can only grant divorce (divisible divorce).

If a divorce decree is entered in another state; NC spouse has 6 months from date of decree to file for equitable distribution in NC. Must seek alimony before the divorce decree is entered.

Question 3

Full faith and credit

Answer 3

A valid divorce entered into in 1 state must be recognized by all states.

Question 4

Equitable distribution

Answer 4

Method to divide property at divorce

Equal distribution of marital property, taking into consideration circumstances of parties.

Presumes = is equitable; party seeking deviation must prove by a preponderance of the evidence that an equal division would be inequitable.

Not available after annulment

May filed for ED any time after separation, but generally before divorce decree is entered into.

Question 5

Kinds of property for equitable distribution

Answer 5

Marital property

Divisible property

Separate property

Question 6

Marital property

Answer 6

Property acquired by either spouse during the marriage

Title doesn’t matter

Valued at date of separation

Question 7

Divisible property

Answer 7

Passive increases or decreases in marital property that occur after the separation but before distribution of the property.

Property rights received after the date of separation but before the date of distribution, earned during the marriage (bonus paid after separation, but earned while married).

Question 8

Separate property

Answer 8

Property belonging to one spouse that is not divided as part of ED:

Property acquired by one spouse before the marriage;

After the parties separated (unless earned during marriage);

Excluded by valid agreement

Acquired by gift on inheritance

Acquired in exchange for separate property

Passive increase in value or income of separate property

Question 9

Factors in distribution of marital property

Answer 9

After the court classifies the property as marital, divisible, or separate, it uses ED to divide marital and divisible property.

Statutory factors all relate to personal and economic conditions of spouses; not fault.

Court has wide discretion in weighing the factors

Standard on appeal is clear abuse of discretion where court considers and only relies upon 1 consideration.

Income, property, and liabilities of each party
Support obligations arising from prior marriages

The duration of the marriage, age and health of parties

The need of the custodial parent to occupy or own the marital home

The expectation of pension, retirement, or other deferred compensation rights that are separate property

Contributions to increases in marital property, including homemaking and child-rearing

Contributions to education or development of career potential of other spouse

Direct contribution to an increase in the value of separate property during the marriage

The liquid or nonliquid character of all material and divisible property

The difficulty of evaluating the economic desirability of retaining any interest in a business or profession, free from any claim by the other spouse

The tax consequences of each party, including federal and state tax

Acts of either party to maintain or neglect marital or divisible property during separation before distribution

In the event of death before distribution, property passing to surviving spouts and

Any other relevant factor

Question 10

Treatment of specific types of property

Answer 10

A professional license or degree is not a property interest subject to ED

Retirement or pension benefits acquired during the marriage are marital property (calculate by percentage of years of employment during marriage)

Personal injury claim and insurance proceeds are classified by what they are compensating for

Profession goodwill is marital property

A possible future interest is not subject to ED

Stock options acquired as a result of labor during marriage are marital property

SS benefits are not subject to ED

Debt incurred durig the marriage may be marital or separate.

ED not taxed in the same manner as regular income. Property transferred between divorcing souses is tax free at the time. Taxable when sold.