North Carolina and most other states have equitable-distribution laws that are derived from English common law, and they require family law judges to divide marital property fairly but not necessarily equally in divorce cases. In some western states where the legal systems have Spanish rather than English roots, what are known as community property laws generally require judges to divide marital assets equally in a divorce even if doing so would result in an unfair outcome.
Before determining how marital assets and debts should be divided, judges in states with equitable distribution laws consider a number of factors. These include the length of the marriage and the ages, incomes and financial needs of the spouses. Judges do this because they want their rulings to be fair, and they could be more generous to spouses who have made sacrifices than judges whose hands are tied by community property laws. Judges also consider the reason why the marriage failed, and spouses who were unfaithful or abusive may be treated more harshly.
Another common divorce myth is the belief that all assets are divided. In both equitable distribution and community property states, only assets and debts acquired during the marriage are subject to division. Assets that either spouse owned before they got married and gifts or inheritances they received while they were married are not divided because they are considered separate property. An exception may be made to this general rule when separate assets become commingled with marital assets. This could happen if an inheritance is deposited into a joint bank account or funds from a joint bank account are used to maintain or improve a separate asset.
These issues only come into play when divorcing spouses are unable to reach an amicable agreement at the negotiating table and property division is left up to a judge to decide. This is a situation that should be avoided if possible because there is no guarantee that either party will leave the courtroom happy regardless of the laws involved. Traditional negotiations are adversarial and often become contentious in divorce cases, but alternative approaches like mediation may produce a breakthrough even in situations where litigation seemed all but inevitable.