Charlotte Divorce Lawyer Blog
Board Certified Family Law Specialist Matt Arnold answers the question: ” Is there some property that the judge cannot divide?”
When a marriage is ending, a judge is tasked with separating the assets and belongings of a married couple. The first thought in most people’s minds is how the assets of the couple are going to be divided. What most people fail to consider are the debts that a couple might be carrying. The debts that a couple incur during marriage also need to be part of the distribution of property; it is not just assets that get divided in divorce.
North Carolina is an equitable distribution state. This means that marital property is divided equitably between a divorcing couple. Equitably does not have to mean equally, however. The judge assigned to the case will analyze the value of the assets and debts of the couple to determine what is equitable. The people going through the divorce are likely to dispute the value of assets as of the day of separation. Debt accumulated by the couple, like mortgages, bank loans, and student loans, must also be evaluated and apportioned to each individual. The court considered the “joint benefit” of the debt that each party experienced.
One of the main contentions in apportioning debt during divorce is whether the debt is marital or individual debt. Generally, debt that is accumulated during the marriage is marital and prior debt from before the marriage is individual. However, this is not always a hard and fast rule. Student loan debt can be hard to apportion. It might seem like the person accumulating the debt is the sole person responsible, but that is not always the case.
Student loan debt is often argued to be part of marital debt by the individual who went to school and obtained the debt. This can be found to be marital debt under the North Carolina equitable distribution statute if:
- The party claiming the debt is marital meets the burden of proof;
- The amount of debt and the amount of debt at the date of separation can be distinguished; and
- The debt was undertaken for the joint benefit of both spouses.
The judge will balance all of the evidence presented and determine whether student loan debt is part of the marital debt. One thing that judges consider is the length of the marriage. The judge will look to see if the duration of the marriage was long enough for both parties to enjoy the benefits of the degree obtained causing the student loan debt. It can be difficult to come up with a figure to represent the benefit each party enjoyed, but it is often up to the discretion of the family court judge to determine how student loan debt will be treated.
If you are considering filing for divorce in North Carolina, contact the family law attorneys at Arnold & Smith, PLLC. We know that it can be confusing when a judge is separating the assets and debts from a marriage. We are always on your side and fighting for your needs. Contact us today for a consultation. If you find yourself facing a complicated family law matter and need the help of experienced family-law attorneys in or around Charlotte, Lake Norman, or our new office in Monroe, please contact Arnold & Smith, PLLC today at (704) 370-2828 or find additional resources here.
The family law practice group at Arnold & Smith, PLLC includes two Board-Certified Family Law specialists and one Child Welfare Law specialist, as well as several attorneys with many years of family law experience that are committed to providing a powerful voice to individuals facing the often-tumultuous issues in this area of law. The range of issues our family law clients may be facing include pre- and post-nuptial agreements; separation agreements; post-separation support; child support (both temporary and permanent); absolute divorce; divorce from bed and board; military divorce; equitable distribution of assets; child custody (both temporary and permanent); retirement benefits and divorce; alimony and spousal support; adoption; and emancipation. Because this area of the law is usually emotionally charged and complicated, the family law attorneys at Arnold & Smith, PLLC act with the utmost dedication to ensure that each client understands his or her options, and then act to achieve the best result possible for that client’s particular situation.
Source:
https://www.ncleg.net/EnactedLegislation/Statutes/HTML/BySection/Chapter_50/GS_50-20.html
https://www.sog.unc.edu/sites/www.sog.unc.edu/files/Chapter-06-part-1_Bench-Book_2017.pdf
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https://www.freeimages.com/photo/money-trap1-1238807
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