Who Divides Our Property?

The division of marital property can be completed through the execution of a Property Settlement Agreement, also known as a Separation Agreement. A Separation Agreement occurs when both parties are willing to agree to the Classification, Valuation and Distribution of assets between each of them. When either party cannot agree upon either the Classification, Valuation and or Distribution of martial property for the creation of a Separation Agreement, the only alternative is for either party to file for Equitable Distribution through a North Carolina Court.

Through a lengthy process, and with the assistance of the court, both parties will be required to first attend a type of Alternative Dispute Resolution in the form of Mediation or a Judicial Settlement Conference. In the event that the parties cannot agree in Mediation or a Judicial Settlement Conference, both parties will be required to divide their estate through litigation. During litigation, a District Court Judge, not a jury will divide marital property.

An agreement under G.S. 50-20(d) has to be executed in a particular way

North Carolina lets spouses divide their own property, but only through an instrument that meets the statute. G.S. 50-20(d) permits the parties, before, during or after the marriage, to provide for distribution of the marital or divisible property “by written agreement, duly executed and acknowledged in accordance with the provisions of G.S. 52-10 and 52-10.1, or by a written agreement valid in the jurisdiction where executed,” and provides that the agreement is binding on them.

G.S. 52-10.1 authorizes a married couple to execute a separation agreement not inconsistent with public policy, and carries across the execution requirements of G.S. 52-10: the agreement must be in writing and acknowledged by both parties before a certifying officer, who may not be a party to the contract. An agreement that does not meet those formalities is exposed on exactly the point it was written to settle.

A properly executed agreement takes the property division out of the court’s hands. It does not, on its own, end the marriage — an absolute divorce under G.S. 50-6 is a separate proceeding.

Since 1 October 2025 the division cannot be written into a deed

Session Law 2025-25 changed how spouses may deal with real property between themselves. G.S. 50-20(d) still allows the parties to provide for the distribution of marital or divisible property by a written agreement duly executed and acknowledged under G.S. 52-10 and G.S. 52-10.1, and that agreement is still binding on them, but the subsection now adds that the parties “shall not provide for this distribution in an instrument of conveyance of real property.” The same section of the Session Law amended G.S. 39-13.3(a), which governs conveyances between spouses, so that the conveyance does not waive or release a right or claim to equitable distribution with respect to the property under G.S. 50-20, and so that such a right or claim shall not be waived or released in the instrument of conveyance. The change applies to conveyances executed on or after 1 October 2025.

Waiver language dropped into a deed between spouses therefore no longer releases an equitable distribution claim. The release has to appear in a separate signed and acknowledged instrument — a separation agreement, a premarital or postmarital agreement, or a court order — and the deed simply moves the title.

Without an agreement, someone has to file before the divorce is granted

Where the parties cannot agree, the property is divided only if a claim is filed, and the deadline is fixed by the divorce rather than by any limitation period. G.S. 50-11(e) provides that an absolute divorce obtained within this State destroys the right of a spouse to equitable distribution under G.S. 50-20 unless the right is asserted before the judgment of absolute divorce.

The claim can be brought at any time after the parties begin to live separate and apart. G.S. 50-21(a) allows it to be filed as a separate civil action, together with another action under Chapter 50, or as a motion in the cause under G.S. 50-11(e) or (f). If nobody files, each asset remains with whichever spouse holds the title, whatever the source of the funds that bought it.

A district court judge decides the claim, and there is no jury

G.S. 7A-244 makes the district court division the proper division, without regard to the amount in controversy, for the trial of civil actions for “annulment, divorce, equitable distribution of property, alimony, child support, child custody and the enforcement of separation or property settlement agreements between spouses, or recovery for the breach thereof.” For a separation in Mecklenburg County the case is heard in the district court of the 26th Judicial District in Charlotte.

G.S. 50-21(c) provides only that nothing in G.S. 50-20 or G.S. 50-21 “shall restrict or extend the right to trial by jury as provided by the Constitution of North Carolina.” In practice the claim is tried by a district court judge sitting without a jury, who classifies each asset and debt, finds its value, and enters a judgment containing the written findings G.S. 50-20(j) requires.

The route to trial runs through a scheduling conference and a settlement event

The procedure between filing and trial is largely statutory. Under G.S. 50-21(a) the party who first asserts the claim must serve an equitable distribution inventory affidavit within 90 days of service of the claim, listing all property claimed to be marital and all property claimed to be separate with estimated date-of-separation values, and the other party must serve an affidavit in reply within 30 days.

G.S. 50-21(d) then requires an application within 120 days of the initial pleading for a scheduling and discovery conference, at which the court sets the discovery schedule, rules on applications including the appointment of expert witnesses and the determination of the date of separation, and fixes an initial pretrial conference. At the initial pretrial conference the court sets dates for completing discovery, for completing a mediated settlement conference where one applies, and for trial.

Under G.S. 7A-38.4A(c) any chief district court judge may order a mediated settlement conference or another settlement procedure for a pending action involving equitable distribution, alimony, or child or postseparation support; the power is permissive, so whether a particular case is sent turns on the order made in it. Where such an order is made, G.S. 7A-38.4A(d) requires the parties, their attorneys and any other person or entity with authority to settle a party’s claim to attend, while providing that no participant is obliged to make an offer or demand they do not wish to make and that a party who has been the victim of domestic violence may be excused from attending in person. G.S. 7A-38.4A(e) permits the court, after notice and a hearing, to impose sanctions on a party who fails without good cause to attend or to pay the mediator’s fee.

Part of the estate can be divided before the trial of the whole

The choice is not strictly between full agreement and a full trial. G.S. 50-20(i1) allows the court, unless good cause is shown that there should not be an interim distribution, to enter orders at any time after the action is filed declaring what is separate property and dividing part of the marital property, divisible property or debt, with any such order taken into consideration at trial and proper credit given.

Parties also frequently settle some classifications and values by stipulation and litigate the rest, which narrows what the judge has to decide. Where one party will not engage, G.S. 50-21(e) requires the court to impose an appropriate sanction on a party who has wilfully obstructed or unreasonably delayed the proceeding where that conduct is or would be prejudicial to the other party, and the sanction may include reasonable expenses, a reasonable attorneys’ fee and the appointment of an accountant, appraiser or other expert at the offending party’s expense.

Common questions

Do both spouses have to agree for a separation agreement to divide property in North Carolina?

Yes. A property division under G.S. 50-20(d) takes effect only through a written agreement, and G.S. 52-10.1 and G.S. 52-10 require it to be in writing and acknowledged by both parties before a certifying officer who is not a party to the contract. Where the parties cannot agree on classification, valuation or distribution, the only alternative is a claim for equitable distribution in the district court.

Who decides equitable distribution if the case goes to trial in Charlotte?

A district court judge. G.S. 7A-244 makes the district court division the proper division for equitable distribution without regard to the amount in controversy, and in Mecklenburg County that is the district court of the 26th Judicial District. G.S. 50-21(c) neither restricts nor extends the constitutional jury right, and equitable distribution claims are tried without a jury.

Is mediation required before an equitable distribution trial in North Carolina?

It is required only where the court orders it, and the power to order it is discretionary. Under G.S. 7A-38.4A(c) any chief district court judge may order a mediated settlement conference or another settlement procedure for an action involving equitable distribution, alimony, or child or postseparation support. Where such an order is made, G.S. 7A-38.4A(d) requires the parties, their attorneys and anyone with authority to settle to attend, subject to the excusals the subsection allows, including for a party who has been the victim of domestic violence, and G.S. 7A-38.4A(e) permits sanctions, after notice and a hearing, for failing to attend without good cause.

Written for North Carolina law and reviewed by David P. Sheehan, attorney, Charlotte. General information, not legal advice — see the disclaimer.