Who Decides What Happens to My Property in a North Carolina Divorce?

For many spouses, one of the most challenging things about divorce is the loss of control. You might feel like your life is heading in an uncertain direction, and it is this uncertainty that is particularly daunting, especially if you have been married for decades. Another troubling aspect of divorce is handing over control to other people. Various parties may suddenly find themselves in a position of power over your wealth, children, and even your home. Who exactly wields this power, and how can you take back control as a divorcing spouse in North Carolina?

If you pursue a litigated divorce, the person who exerts the most control is a family law judge. These judges hear from both spouses and determine the most optimal way to approach all divorce-related matters. They may make decisions on child custody, spousal support, property division, and child support.

Note that, generally speaking, a judge does not spend much time reviewing your case before the divorce trial begins. As a result, some argue that judges are not the most suitable people to make these life-altering decisions. Nevertheless, litigation may be unavoidable if you and your ex cannot decide how to handle your divorce behind closed doors.

Arbitrators are similar to judges, and their final decisions are legally binding. However, an arbitrator does not carry out their duties in a courtroom. Instead, they preside over a private negotiation process behind closed doors. Each spouse will have a chance to tell their side of the story, and this process is similar to mediation and collaborative law. However, arbitrators exert more control than mediators – and spouses must respect their decisions at the end of negotiations. Like all forms of Alternative Dispute Resolution (ADR), arbitration has its pros and cons.

If you want to exert more control over your North Carolina divorce compared to arbitration and litigation, there are many options to consider. First and foremost, spouses can resolve their differences behind closed doors. They can begin this informal negotiation process almost immediately after separation, and they may make significant progress alone. North Carolina enforces a mandatory one-year separation period, and this is an obvious time to engage in mediation or collaborative law.

Unlike arbitration or litigation, collaborative law and mediation give spouses more control over what happens to their assets. A common strategy is to “trade” assets instead of selling them and splitting the proceeds. This keeps high-value or sentimental property intact, and it can streamline the overall equitable distribution process. In contrast, judges often order spouses to sell their assets and divide the cash.

Another common strategy involves “buyouts.” If one spouse wants complete control over a specific asset, they might decide to provide their ex with 50% of its cash value. This also keeps important properties intact, allowing spouses to divide their wealth without selling.

The only real downside to these ADR strategies is that both spouses must agree to participate. If your ex would rather engage in litigation for whatever reason, you must follow suit. This could be an issue if your spouse is intent on drawing out the divorce in court and making it as difficult as possible for everyone involved.

Note that even the most bitter and resentful spouses understand that litigation usually makes little sense. Not only is it more expensive than ADR, but it is also more time-consuming. Many believe that litigation is also inherently more stressful for everyone involved due to its combative “me vs. you” structure. Litigation can be especially difficult for children.

If you are about to enter into a new marriage, a prenuptial agreement is an obvious pathway toward greater control. With this contract, you and your spouse can dictate exactly what happens if you ever divorce. As long as it is carried out correctly, this strategy provides even more control than collaborative law or mediation.

For example, you and your spouse might agree that alimony (spousal support) is not necessary in the event of a divorce. Spouses might also agree that a family business is off-limits when it comes to property division.

Arnold & Smith, PLLC, understands how difficult it can be to surrender control during a divorce in North Carolina. Fortunately, you can rely on our experienced family law attorneys to give you back control. From collaborative law and mediation to prenups and litigation, we can help you execute numerous effective strategies. Reach out today to learn more about your legal options.