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North Carolina Marital Domestic Separation and Property Settlement...

Raleigh North Carolina Marital Domestic Separation and Property Settlement Agreement no Children parties may have Joint Property or Debts Effective Immediately

Name: Raleigh North Carolina Marital Domestic Separation and Property Settlement Agreement no Children parties may have Joint Property or Debts Effective Immediately
Brand: US Legal Forms
Rating: 4.58 (416 reviews)

Category:

Family Law - Divorce - Separation - No Children

State:

North Carolina

City:

Raleigh

Control #:

NC-DO-2A

Format:

Instant download

Description

This Marital Domestic Separation and Property Settlement Agreement is a Separation and Property Settlement for persons with no minor children. The parties do have joint property or debts. It is for use after separation. It contains detailed provisions for the division of assets and the payment of liabilities.

Raleigh, North Carolina Marital Domestic Separation and Property Settlement Agreement (no Children) Introduction: A Marital Domestic Separation and Property Settlement Agreement is a crucial legal document that outlines the arrangements between two parties seeking separation or divorce in Raleigh, North Carolina. This document becomes particularly important when there are no children involved, and both parties have joint property or debts to address. This detailed description aims to explain the key aspects of this agreement, its purpose, and its significance. Terms and Scope: The Raleigh, North Carolina Marital Domestic Separation and Property Settlement Agreement (no Children) establish the terms and conditions for the equitable distribution of assets and liabilities between the involved parties. This legally binding agreement seeks a fair and amicable resolution, providing a comprehensive understanding of how both parties' marital property and debts will be divided. Effective Immediately: Once signed by both parties, this agreement becomes effective immediately. It governs the property distribution and debt allocation without further consideration, ensuring that neither party gains an unfair advantage nor bears an undue burden during the separation process. Key Elements: 1. Identification of Parties: The agreement begins by identifying the individuals involved in the separation. This includes their legal names, addresses, and any other relevant identification information. 2. Asset Division: This section outlines how the marital assets, such as real estate, bank accounts, investments, vehicles, and personal belongings, will be distributed between the parties. The agreement specifies the allocation percentages or a clear method of division, ensuring a fair distribution of joint property. 3. Debt Allocation: This component addresses the division of debts acquired during the marriage. It outlines the responsibility of each party for joint debts, including mortgages, credit card debts, loans, and other financial obligations. By clearly defining the parties' responsibilities, this section helps avoid future disputes over debt repayments. 4. Spousal Support: The agreement may include provisions concerning spousal support or alimony. It can outline the terms, duration, and amount of any financial support provided by one party to the other after separation or divorce. 5. Real Estate: In cases where the parties jointly own real estate, this section will outline the arrangements for the sale, transfer, or buyout of the property, including the distribution of proceeds or financial obligations related to the property. 6. Retirement Accounts and Investments: If there are retirement accounts, pensions, or other investments, this section specifies how these assets will be divided or shared equitably between the parties. Different Types: While the Raleigh, North Carolina Marital Domestic Separation and Property Settlement Agreement (no Children) is primarily focused on parties without children, there can be variations based on unique circumstances. Some possible types may include: 1. Marital Domestic Separation and Property Settlement Agreement (no Children with Joint Business Ownership): Parties with joint business ownership may have additional clauses addressing the division of business assets, liabilities, profits, and business-related financial considerations. 2. Marital Domestic Separation and Property Settlement Agreement (no Children with Prenuptial/Post-nuptial Agreement): In cases where a prenuptial or post-nuptial agreement exists, the property settlement agreement may need to reference and incorporate the terms and conditions of the existing agreement. 3. Marital Domestic Separation and Property Settlement Agreement (no Children with Disputed Property): In situations where there is a dispute over specific property or assets, this type of agreement may require the addition of provisions to address the resolution of such conflicts. Conclusion: The Raleigh, North Carolina Marital Domestic Separation and Property Settlement Agreement (no Children) is a legally binding document that enables divorcing or separating parties to settle their financial affairs amicably and efficiently. By clearly defining the terms of asset division, debt allocation, and other crucial matters, this agreement helps both parties establish a fair and equitable resolution, ensuring a smooth separation process without the involvement of children.

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FAQ

Separation agreements must be in writing (not verbal), must be signed by both parties, and both signatures must be notarized.

The majority of states, including North Carolina, follow the common law property system. Under the common law system, each spouse solely owns and controls any property he or she acquires during the marriage and titles in their name.

Marital property includes property presently owned that was acquired by both parties ? and debts created ? during the marriage. It includes all vested pension and retirement benefits accrued between the date of marriage and the date of separation.

Privacy?Unlike court documents, a separation agreement is not a public record and the general public does not have access to the terms of your agreement without your consent. Time?A court trial can be a long, involved and time-consuming process.

The bottom line is that in North Carolina, both spouses must sign a deed to sell or transfer real property!

Property can be divided in any amount. However, in most North Carolina divorce situations, equitable distribution law presumes an equal 50/50 division ? meaning each spouse receives half of the estate.

Whoever has their name on the title of the house, for example, will be the one to keep the house. If both parties have their name on the title and the mortgage, they will both continue to be responsible for the payments until the one remaining in the home refinances.

1. One spouse moves out, while the other spouse remains in the house. If the spouses are able to reach an agreement without resorting to litigation, they may agree that one spouse will move out while the other spouse will remain in the marital home.

Property owned by either party prior to marriage is that party's separate property, provided that it is not gifted to the marital unit. Equitable distribution law presumes, further, that an equal (50/50) division of the marital property will be equitable.

The right to stay in your home unless a court order excludes it. The right to ask the court to enable you to return to your home (if you have moved out) The right to know of any repossession action taken out by your mortgage lender. The right to join any mortgage possession proceedings taken out by your lender.

Interesting Questions

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Frequently Asked Questions About Child Support Services. The main issues typically revolve around property division, spousal support and alimony, child custody, and child support.Experts in estate planning answer common questions regarding when beneficiaries of a will or trust will receive their inheritance. Child support, such as custody, visitation, or property settlements. The Settlement does not become effective for any other reason, the funds held in the. Often, a married couple's estate plan consists of identical wills, each naming the other as executor of the deceased spouse's estate. Is there at least one child financially dependent on you? A child is usually considered financially dependent up to the age of 19 It is not an asset which can be divided at divorce as marital or community property. I've heard that state laws do not take precedence over federal law.

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Marital Domestic Separation and Property Settlement Agreement no Children parties may have Joint Property or Debts Effective Immediately

Note: This summary is not intended to be an all inclusive discussion of the law of separation agreements in North Carolina, but does include basic and other provisions.

General Summary:

Any married couple is hereby authorized to execute a separation agreement not inconsistent with public policy which shall be legal, valid, and binding in all respects; provided, that the separation agreement must be in writing and acknowledged by both parties before a certifying officer, such as a notary public. When the Agreement is presented to the court for the court's approval, the agreement is treated not as a contract but rather as a court ordered judgment which may be modified and enforced through the contempt powers of the court, in the same manner as any other judgment in a domestic relations case.

Statutes:

North Carolina General Statutes

Chapter 50

Divorce and Alimony

Distribution by court of marital and divisible property upon divorce:

(a) Upon application of a party, the court shall determine what is the marital property and divisible property and shall provide for an equitable distribution of the marital property and divisible property between the parties in accordance with the provisions of this section.

(b) For purposes of this section:

(1) "Marital property" means all real and personal property acquired by either spouse or both spouses during the course of the marriage and before the date of the separation of the parties, and presently owned, except property determined to be separate property or divisible property in accordance with subdivision (2) or (4) of this subsection. Marital property includes all vested and nonvested pension, retirement, and other deferred compensation rights, and vested and nonvested military pensions eligible under the federal Uniformed Services Former Spouses' Protection Act. It is presumed that all property acquired after the date of marriage and before the date of separation is marital property except property which is separate property under subdivision (2) of this subsection. This presumption may be rebutted by the greater weight of the evidence.

(2) "Separate property" means all real and personal property acquired by a spouse before marriage or acquired by a spouse by bequest, devise, descent, or gift during the course of the marriage. However, property acquired by gift from the other spouse during the course of the marriage shall be considered separate property only if such an intention is stated in the conveyance. Property acquired in exchange for separate property shall remain separate property regardless of whether the title is in the name of the husband or wife or both and shall not be considered to be marital property unless a contrary intention is expressly stated in the conveyance. The increase in value of separate property and the income derived from separate property shall be considered separate property. All professional licenses and business licenses which would terminate on transfer shall be considered separate property.

(3) "Distributive award" means payments that are payable either in a lump sum or over a period of time in fixed amounts, but shall not include alimony payments or other similar payments for support and maintenance which are treated as ordinary income to the recipient under the Internal Revenue Code.

(4) "Divisible property" means all real and personal property as set forth below:

a. All appreciation and diminution in value of marital property and divisible property of the parties occurring after the date of separation and prior to the date of distribution, except that appreciation or diminution in value which is the result of postseparation actions or activities of a spouse shall not be treated as divisible property.

b. All property, property rights, or any portion thereof received after the date of separation but before the date of distribution that was acquired as a result of the efforts of either spouse during the marriage and before the date of separation, including, but not limited to, commissions, bonuses, and contractual rights.

c. Passive income from marital property received after the date of separation, including, but not limited to, interest and dividends.

d. Increases in marital debt and financing charges and interest related to marital debt.

(c) There shall be an equal division by using net value of marital property and net value of divisible property unless the court determines that an equal division is not equitable. If the court determines that an equal division is not equitable, the court shall divide the marital property and divisible property equitably. Factors the court shall consider under this subsection are as follows:

(1) The income, property, and liabilities of each party at the time the division of property is to become effective;

(2) Any obligation for support arising out of a prior marriage;

(3) The duration of the marriage and the age and physical and mental health of both parties;

(4) The need of a parent with custody of a child or children of the marriage to occupy or own the marital residence and to use or own its household effects;

(5) The expectation of pension, retirement, or other deferred compensation rights that are not marital property;

(6) Any equitable claim to, interest in, or direct or indirect contribution made to the acquisition of such marital property by the party not having title, including joint efforts or expenditures and contributions and services, or lack thereof, as a spouse, parent, wage earner or homemaker;

(7) Any direct or indirect contribution made by one spouse to help educate or develop the career potential of the other spouse;

(8) Any direct contribution to an increase in value of separate property which occurs during the course of the marriage;

(9) The liquid or nonliquid character of all marital property and divisible property;

(10) The difficulty of evaluating any component asset or any interest in a business, corporation or profession, and the economic desirability of retaining such asset or interest, intact and free from any claim or interference by the other party;

(11) The tax consequences to each party;

(11a) Acts of either party to maintain, preserve, develop, or expand; or to waste, neglect, devalue or convert the marital property or divisible property, or both, during the period after separation of the parties and before the time of distribution; and

(12) Any other factor which the court finds to be just and proper.

(c1) Notwithstanding any other provision of law, a second or subsequent spouse acquires no interest in the marital property and divisible property of his or her spouse from a former marriage until a final determination of equitable distribution is made in the marital property and divisible property of the spouse's former marriage.

(d) Before, during or after marriage the parties may by written agreement, duly executed and acknowledged in accordance with the provisions of G.S. 52-10 and 52-10.1, or by a written agreement valid in the jurisdiction where executed, provide for distribution of the marital property or divisible property, or both, in a manner deemed by the parties to be equitable and the agreement shall be binding on the parties.

(e) Subject to the presumption of subsection (c) of this section that an equal division is equitable, it shall be presumed in every action that an in-kind distribution of marital or divisible property is equitable. This presumption may be rebutted by the greater weight of the evidence, or by evidence that the property is a closely held business entity or is otherwise not susceptible of division in-kind. In any action in which the presumption is rebutted, the court in lieu of in-kind distribution shall provide for a distributive award in order to achieve equity between the parties. The court may provide for a distributive award to facilitate, effectuate or supplement a distribution of marital or divisible property. The court may provide that any distributive award payable over a period of time be secured by a lien on specific property.

(f) The court shall provide for an equitable distribution without regard to alimony for either party or support of the children of both parties. After the determination of an equitable distribution, the court, upon request of either party, shall consider whether an order for alimony or child support should be modified or vacated pursuant to G.S. 50-16.9 or 50-13.7.

(g) If the court orders the transfer of real or personal property or an interest therein, the court may also enter an order which shall transfer title, as provided in G.S. 1A-1, Rule 70 and G.S. 1-228.

(h) If either party claims that any real property is marital property or divisible property, that party may cause a notice of lis pendens to be recorded pursuant to Article 11 of Chapter 1 of the General Statutes. Any person whose conveyance or encumbrance is recorded or whose interest is obtained by descent, prior to the filing of the lis pendens, shall take the real property free of any claim resulting from the equitable distribution proceeding. The court may cancel the notice of lis pendens upon substitution of a bond with surety in an amount determined by the court to be sufficient provided the court finds that the claim of the spouse against property subject to the notice of lis pendens can be satisfied by money damages.

(i) Upon filing an action or motion in the cause requesting an equitable distribution or alleging that an equitable distribution will be requested when it is timely to do so, a party may seek injunctive relief pursuant to G.S. 1A-1, Rule 65 and Chapter 1, Article 37, to prevent the disappearance, waste or conversion of property alleged to be marital property, divisible property, or separate property of the party seeking relief. The court, in lieu of granting an injunction, may require a bond or other assurance of sufficient amount to protect the interest of the other spouse in the property. Upon application by the owner of separate property which was removed from the marital home or possession of its owner by the other spouse, the court may enter an order for reasonable counsel fees and costs of court incurred to regain its possession, but such fees shall not exceed the fair market value of the separate property at the time it was removed.

(i1) Unless good cause is shown that there should not be an interim distribution, the court may, at any time after an action for equitable distribution has been filed and prior to the final judgment of equitable distribution, enter orders declaring what is separate property and may also enter orders dividing part of the marital property, divisible property or debt, or marital debt between the parties. The partial distribution may provide for a distributive award and may also provide for a distribution of marital property, marital debt, divisible property, or divisible debt. Any such orders entered shall be taken into consideration at trial and proper credit given.

Hearings held pursuant to this subsection may be held at sessions arranged by the chief district court judge pursuant to G.S. 7A-146 and, if held at such sessions, shall not be subject to the reporting requirements of G.S. 7A-198.

(j) In any order for the distribution of property made pursuant to this section, the court shall make written findings of fact that support the determination that the marital property and divisible property has been equitably divided.

(k) The rights of the parties to an equitable distribution of marital property and divisible property are a species of common ownership, the rights of the respective parties vesting at the time of the parties' separation. § 50-20.

Procedures in actions for equitable distribution of property; sanctions for purposeful and prejudicial delay:

(a) At any time after a husband and wife begin to live separate and apart from each other, a claim for equitable distribution may be filed, either as a separate civil action, or together with any other action brought pursuant to Chapter 50 of the General Statutes, or as a motion in the cause as provided by G.S. 50-11(e) or (f). Within 90 days after service of a claim for equitable distribution, the party who first asserts the claim shall prepare and serve upon the opposing party an equitable distribution inventory affidavit listing all property claimed by the party to be marital property and all property claimed by the party to be separate property, and the estimated date-of-separation fair market value of each item of marital and separate property. Within 30 days after service of the inventory affidavit, the party upon whom service is made shall prepare and serve an inventory affidavit upon the other party. The inventory affidavits prepared and served pursuant to this subsection shall be subject to amendment and shall not be binding at trial as to completeness or value. The court may extend the time limits in this subsection for good cause shown. The affidavits are subject to the requirements of G.S. 1A-1, Rule 11, and are deemed to be in the nature of answers to interrogatories propounded to the parties. Any party failing to supply the information required by this subsection in the affidavit is subject to G.S. 1A-1, Rules 26, 33, and 37. During the pendency of the action for equitable distribution, discovery may proceed, and the court shall enter temporary orders as appropriate and necessary for the purpose of preventing the disappearance, waste, or destruction of marital or separate property or to secure the possession thereof.

Real or personal property located outside of North Carolina is subject to equitable distribution in accordance with the provisions of G.S. 50-20, and the court may include in its order appropriate provisions to ensure compliance with the order of equitable distribution.

(b) For purposes of equitable distribution, marital property shall be valued as of the date of the separation of the parties, and evidence of preseparation and postseparation occurrences or values is competent as corroborative evidence of the value of marital property as of the date of the separation of the parties. Divisible property and divisible debt shall be valued as of the date of distribution.

(c) Nothing in G.S. 50-20 or this section shall restrict or extend the right to trial by jury as provided by the Constitution of North Carolina.

(d) Within 120 days after the filing of the initial pleading or motion in the cause for equitable distribution, the party first serving the pleading or application shall apply to the court to conduct a scheduling and discovery conference. If that party fails to make application, then the other party may do so. At the conference the court shall determine a schedule of discovery as well as consider and rule upon any motions for appointment of expert witnesses, or other applications, including applications to determine the date of separation, and shall set a date for the disclosure of expert witnesses and a date on or before which an initial pretrial conference shall be held.

At the initial pretrial conference the court shall make inquiry as to the status of the case and shall enter a date for the completion of discovery, the completion of a mediated settlement conference, if applicable, and the filing and service of motions, and shall determine a date on or after which a final pretrial conference shall be held and a date on or after which the case shall proceed to trial.

The final pretrial conference shall be conducted pursuant to the Rules of Civil Procedure and the General Rules of Practice in the applicable district or superior court, adopted pursuant to G.S. 7A-34. The court shall rule upon any matters reasonably necessary to effect a fair and prompt disposition of the case in the interests of justice.

(e) Upon motion of either party or upon the court's own initiative, the court shall impose an appropriate sanction on a party when the court finds that:

(1) The party has willfully obstructed or unreasonably delayed, or has attempted to obstruct or unreasonably delay, discovery proceedings, including failure to make discovery pursuant to G.S. 1A-1, Rule 37, or has willfully obstructed or unreasonably delayed or attempted to obstruct or unreasonably delay any pending equitable distribution proceeding, and

(2) The willful obstruction or unreasonable delay of the proceedings is or would be prejudicial to the interests of the opposing party.

Delay consented to by the parties is not grounds for sanctions. The sanction may include an order to pay the other party the amount of the reasonable expenses and damages incurred because of the willful obstruction or unreasonable delay, including a reasonable attorneys' fee, and including appointment by the court, at the offending party's expense, of an accountant, appraiser, or other expert whose services the court finds are necessary to secure in order for the discovery or other equitable distribution proceeding to be timely conducted. § 50-21.

Chapter 52

Powers and Liabilities of Married Persons

Separation agreements:

Any married couple is hereby authorized to execute a separation agreement not inconsistent with public policy which shall be legal, valid, and binding in all respects; provided, that the separation agreement must be in writing and acknowledged by both parties before a certifying officer as defined in G.S. 52-10(b). Such certifying officer must not be a party to the contract. This section shall not apply to any judgment of the superior court or other State court of competent jurisdiction, which, by reason of its being consented to by a husband and wife, or their attorneys, may be construed to constitute a separation agreement between such husband and wife. § 52-10.1.

Case Law:

Whenever the parties bring their separation agreements before the court for the court's approval, the agreement will be treated not as a contract but rather as a court ordered judgment . . . modifiable, and enforceable by the contempt powers of the court, in the same manner as any other judgment in a domestic relations case. Walters v. Walters, 307 N.C. 381, 298 S.E.2d 338 (1983).

No separation agreement between the parents will serve to deprive the court of its inherent authority to protect the interests and provide for the welfare of infants. A husband and wife may bind themselves by a separation agreement or by a consent judgment but they cannot withdraw children of the marriage from the protective custody of the court. Walters v. Walters, 307 N.C. 381, 298 S.E.2d 338 (1983).