5 Part Series-What Should I Know When Separating-Part 2 (Splitting Possessions)

When parties are separating there are going to be questions as to who takes what and who is entitled to what.  One of the first things that parties should ask is who is entitled to what money in the bank accounts?  That depends on whether or not the money is marital property.

Equitable distribution is the property settlement statute in North Carolina and it defines what is and is not marital property.  This includes bank accounts, the house, cars, etc.  

SO, CAN I TAKE ANY MONEY OUT OF MY BANK ACCOUNT OR OUR JOINT ACCOUNT?

Potentially you can.  The first question you must answer is whether or not the money in the account is separate or marital property.  If the money is marital property, you are entitled to half the money.  If it's your separate property, then it's all yours and you do with it as you please.  If you're wrong, you will have to compensate your spouse for his/her half that you weren't entitled to take.

A word of caution:  DO NOT take out more than your half of the money.  Look at it this way, if your spouse took all your money wouldn’t you be upset?  So, don’t be a hypocrite and take what is not yours.  Plus, this will come back to bite you in an action by you or your spouse.

WHAT ABOUT THE HOUSE?

That is very dependent on the situation.  As a general rule of thumb I'd recommend staying in the house, but facts may dictate that leaving and getting into a new residence is the better option.

Say your spouse makes substantially more money than you and you cannot afford to make mortgage payments, but he/she offers to set you up in a new apartment, townhome, etc.  You may be tempted to take he/she up on their offer, but remember, just because they agreed to pay your rent or help you pay rent doesn't mean they will actually keep doing it.  It's probably a better option to have them move out while you remain in the home until an agreement on all family law matters is reached.

If neither party can reach an agreement on who is going to leave the home, you cannot start the separation process.  This is because the statute states that the parties must be 'living separate and apart'.  This is where divorce from bed and board comes in.  Basically, a Judge will have to decide who moves from the house so the separation process can start.

Another thing to be aware of is the effect of acquiring new real property when you are separated.  I go into detail on that here.  

I HAVE TO GET TO WORK SO WHO GETS THE CAR(S)?

This, again, goes back to whether or not the car or cars are marital or separate property.  If marital property, then both parties need to agree to sell the car and split the amount they receive or, you know, be adults and agree that the person who has been using the car keeps possession.  If there's only one car, the best option may be to agree to sell it and split the proceeds.  Divorce from bed and board is also an option as it's essentially a court ordered separation that can determine who gets possession of the house and/or the vehicle, among other things.

That does it for this week.  Part 3 of our 5 part series will be discussing child custody and what you should do to prepare for custody when you are separating.

*REMEMBER THAT THIS BLOG POST DOES NOT ESTABLISH AN ATTORNEY-CLIENT RELATIONSHIP AND SHOULD NOT BE CONSTRUED AS LEGAL ADVICE.  IT IS STRICTLY FOR INFORMATIONAL PURPOSES ONLY.