Filing of Equitable Distribution


#1

Question is - must a couple be actually living apart before an Equitable Distribution request (motion or however termed) can be filed?
For instance, Plaintiff filed for a Complaint for Divorce from Bed and Board, but both Parties lived in the same house as always for another 10 months after the filing. ( I know we have to be physically separated for one year before an actual “divorce” decree can be granted, but that is not the question here).
The Complaint for Divorce from Bed & Board (filed while the Parties were living together in the same house), included the following wording Re ED:
" That the Court determine what is the marital property of the parties and provide for an equitable
distribution of the marital property between the parties in accord with North Carolina General Statute 50-20 et seq,"
Is that then a valid and lawful filing sufficient to start an ED process in motion?


#2

You must be separated before you can file for ED. NC Gen Stat § 50-21 states specifically: “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 and adjudicated.” Have you obtained a decree for divorce from bed and board? If there is a decree, it is treated as an order and you should not have remained living in the same residence. If you have a decree, and are now living separate and apart, you may file for ED. Keep in mind that the date the spouses separate under the divorce from bed and board decree may determine what property is properly considered separate or marital property if the spouses ask the court to divide their property: property acquired before the decree will be considered marital property, while property acquired afterward will be deemed separate property.

If you do not have a decree, then you may file for ED. Again, you must be separated before you file for ED.


#3

Thanks for the response. I now see that I haven’t made my exact question clear.

The situation is that we lived together for over 6 months AFTER she filed the original Domestic Civil Action Complaint (which started all the motions, actions etc that are involved in concluding and completing a separation of all aspects of two people’s lives).

I understand that we must be actually “separated” (living apart) before an ED PROCESS can be begun (filed for). And I understand if an ED process has not been instituted BEFORE a final divorce decree is issued, then all rights to an ED process are lost.

What I am trying to determine is exactly “What constitutes an “action” or a “request” or a “filing” to the court sufficient to solidify or “preserve” the future rights to ED?” (That “preserving” of the right would be necessary in this case because of the unusually long time the parties lived together between original filing of the Domestic Civil Action Complaint and the date of separation)

The only mention of ED PRIOR to our final divorce decree (which would be too late as all ED rights are lost if not acted upon prior to final divorce decree) was this line quoted from her original filing of a Domestic Civil Action Complaint:
"6. That the Court determine what is the marital property of the parties and provide for an equitable distribution of the marital property between the parties in accord with North Carolina General Statute 50-20 et seq, and equitably distribute the marital property of the parties hereto."

Is that line, and only that line, (no other mention or action of any kind) sufficient compliance with the statute that it preserves the right to an Equitable Distribution hearing (or however termed), EVEN THOUGH nothing else at all was ever done, filed or mentioned until after the final divorce decree was granted?

Thanks for your help. This question has everyone here stumped.


#4

The law requires that your ED claim be pending prior to the issuing of a divorce decree for the claim to be preserved. Her complaint for divorce from bed and board includes a claim for ED. That language you have quoted results in a pending claim for ED.