Frequently Asked Questions in a Divorce Consultation (Part II)

​Do we have to sell the house?
It depends. There is a presumption in both North Carolina and South Carolina that all of the marital assets and debts will be split equitably between spouses, which includes both the equity in the house and the mortgage debt. If one spouse wishes to keep the house, that spouse must figure out how to do two things: First, the spouse keeping the house must remove the other spouse’s name from the mortgage loan (typically either by refinance, payoff, or assumption), and second, the spouse keeping the house must find a way to pay the other spouse their portion of the equity in the home, if any. For example, the spouse keeping the house might provide the other spouse with a greater portion of marital savings accounts or brokerage accounts in an equivalent value to the other spouse’s portion of the equity in the home. Oftentimes, however, the largest asset couples have is their home and there is no other way to provide each spouse with 50% of the equity in the home except to sell the home and divide the equity proceeds resulting from the sale.   

Do I have to share my retirement/401(k) savings?
It depends. If you have retirement savings that you accumulated prior to marriage, those funds would typically be considered “separate property” and not subject to division in divorce.  Retirement savings and 401(k) account funds that have accumulated during the course of the marriage are considered “marital property,” and are subject to equitable apportionment between the spouses. If you both have close to an equal amount of retirement savings in each of your individual retirement accounts, you might both keep your individual accounts without splitting them. If one spouse has saved most of the retirement for the couple in his or her individual 401(k) account, then the other spouse is typically entitled to half of the funds. That being said, dividing the marital estate is a creative math problem. If you keep your full 401(k) account in the divorce, is there another way to allocate to your spouse the equivalent of 50% of your 401(k) savings? Could you provide your spouse with a greater portion of the equity in the home? Are there other liquid accounts your spouse could be allocated? This is a situation where you definitely need to consult with a lawyer to figure out the best way to divide your marital retirement accounts fairly without incurring extra fees and expenses.  

​Can I get (or will I have to pay) alimony in North Carolina?
Alimony is not automatically awarded in North Carolina. North Carolina has a need-based approach to alimony; one spouse must need alimony to maintain the standard of living they became accustomed to during the course of the marriage and the other spouse must have the ability to pay alimony. The “supporting spouse” would pay alimony to the “dependent spouse” to cover the dependent spouse’s needs that they cannot afford on their own.
In North Carolina, if adultery was committed by the dependent spouse (even if the dependent spouse needs alimony), however, this behavior bars the dependent spouse from receiving alimony. If the supporting spouse has committed adultery (and the supporting spouse has the ability to pay), then the dependent spouse will be awarded alimony.

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