Division of Property in North Carolina Divorces: What's Fair?

Understanding Equitable Distribution in North Carolina

When a marriage comes to an end in North Carolina, one of the most complex and contentious issues that arise is the division of marital property. Unlike some states that follow community property rules, North Carolina adheres to the principles of equitable distribution. However, 'equitable' does not necessarily mean 'equal.' Instead, it refers to what is considered fair by the court after evaluating various factors pertaining to the marriage and the assets in question.

Legal Framework for Division of Property

Under North Carolina General Statute ยง 50-20, equitable distribution is the legal standard used by courts to divide property during a divorce. The process involves three main steps: identifying marital property, valuing the property, and then distributing it between spouses in a manner that is fair but not necessarily equal.

Marital property includes most assets and debts acquired between the date of marriage and the date of separation. Separate property, which is not subject to division, comprises assets acquired before marriage or by inheritance or gift during the marriage. The challenge often lies in proving the nature of these assets when commingling has occurred.

Factors Influencing Equitable Distribution

Courts consider a variety of factors when determining how to divide marital property equitably. These factors can include each spouse's income and earning potential, the length of the marriage, any contributions to the other's education or earning power, and any substantial use of marital funds for non-marital purposes (also known as 'marital waste').

Case Examples Illustrating Equitable Distribution

In historical cases such as Potter v. Potter, courts have demonstrated the application of equitable distribution principles. In this case, the court was tasked with evaluating both parties' contributions to their marital home and business ventures. The ultimate distribution reflected an intricate balance between financial contributions and non-monetary efforts, such as homemaking and child-rearing responsibilities.

The Role of Prenuptial Agreements

Prenuptial agreements can significantly influence how property is divided in a divorce. These agreements allow couples to predetermine how their assets will be distributed in the event of a separation, which can supersede state statutes on equitable distribution if properly executed and deemed fair at the time of signing.


The concept of what is 'fair' varies greatly from one divorce to another in North Carolina. While equal division might seem like the fairest approach at first glance, equitable distribution takes into account a wider range of considerations reflective of each spouse's circumstances. It is crucial for divorcing parties to understand their rights under North Carolina law and seek competent legal advice to navigate this complex process effectively.