Protecting Assets in a Divorce

One of the costliest and most difficult aspects of divorce is the division of property and assets. Couples filing for a divorce may see their stress levels hit an all-time high when dealing with the division of their assets. This process, while not particularly fun, is an important part of allowing spouses to sever all ties to their marriage so they can move on to their new lives.

How Assets Are Divided

North Carolina is an “equitable distribution” state, which means assets are split fairly (not necessarily evenly) in a divorce.

The court has a host of factors to consider, including, for example, the length of the marriage and each spouse’s contributions (whether said contribution was made financially or as the primary homemaker) before deciding how to distribute assets.

Property is generally divided into two categories: marital property and separate property. Property may also be considered part marital and part separate – mixed property.

Property earned during the marriage is marital property that must be distributed equitably.
Separate property is acquired before the marriage or after separation and includes items like inherited property and gifts.

Mixed property is a combination of marital and separate property. This may include retirement accounts obtained prior to marriage, but contributed to throughout the marriage. The division of mixed property can be more complicated because it requires determination of the percentage acquired during the marriage.

How are assets and debts divided in North Carolina?

Tax Consequences of a Divorce

In general, dividing property between spouses is not an event that automatically triggers additional taxes. Splitting a retirement account (such as a 401(k) or an IRA) can be done without either spouse incurring tax.

You simply present a Qualified Domestic Relations Order (QDRO) and your financial institution will split the retirement account into a new one for your former spouse, allowing your two separate retirement accounts to continue to grow tax-deferred. There are, however, some taxable events that can occur during a divorce.

Certain property, such as stocks or other investments, can be subject to a capital gains tax when it is sold. Generally, selling your marital home should not incur too much in the way of tax because this sale has an exemption in capital gains tax up to a certain dollar amount.

Related Reading: Dependents & Tax Exemptions With Child Custody

Who Determines How Assets are Divided in a Divorce?

Protecting your Assets

If you are particularly wealthy or a business owner (or both,) and your wealth/business grew during your marriage, you could stand to lose much of your money in equitable distribution. You want to be able to hold onto as much of your hard-earned income as possible without losing much of it to your soon-to-be former spouse, creditors, or taxes. There are ways of protecting your assets. Some examples include:

• Prenuptial agreements: These are something to consider, since they can control the division of assets during a marriage or in the event of a death or divorce. A prenuptial agreement can help salvage your finances whether or not you are wealthy. If you are a business owner, it can ensure you maintain a controlling interest in your business. If you decide to use a prenuptial agreement, you must make sure it is written and executed according to North Carolina’s Uniform Premarital Agreement Act or it can be contested and possibly voided. Ensuring you have made a full disclosure of your finances, you are being fair to your future spouse, and you do not do anything that could be considered coercing your future spouse into signing will help keep your prenuptial agreement from being thrown out in court.

Steps to Protect Assets in a Divorce

By preparing your finances prior to a divorce filing, you can usually come out of things in a much better position. Here are some options and proactive measures you can take to limit your exposure and protect your assets in a divorce:

• Put together a list of your finances and investments
• Make copies of your bank records, statements, and account holdings
• Begin establishing credit in your own name
• Research possible LLC’s, international accounts, and offshore trusts
• Make an inventory of your personal property
• Move inherited money in accounts not shared by your spouse

While some of these actions can be taken after the divorce proceedings start, keep in mind that it is best to protect your assets prior to being served or sending divorce papers to your spouse.

Can You Hide Your Assets?

Hiding assets is never a good idea and can result in criminal charges. During the divorce process, both spouses, as well as the financial institution(s) they utilize, will be asked to provide financial information during the discovery process. There’s also a good chance the spouses will be involved in a deposition, where they could be asked about their finances and assets.

If you refrain from supplying all of your financial information during discovery, or if you lie during your deposition, you could be charged with committing perjury and fined.

How An Attorney Can Help Protect your Assets

Dividing assets in a divorce is a complicated process that can lead to anger and frustration on both sides. Contacting a Johnston County divorce lawyer with extensive experience in divorce can be beneficial to both parties.

An attorney can advise you which options may be best suited to your unique financial situation and facilitate the process or sheltering any assets that you are entitled to by law. This can ensure things are done properly, legally, and in a way that won’t unnecessarily alert your spouse.