When and How Should an Equitable Distribution Claim be Made?

I often get asked how a claim for equitable distribution can be asserted in North Carolina and if there are any rules about when the claim must be made.

The short answer is: file your equitable distribution claim before the judge grants the divorce and if you don’t do that your claim to be able to divide your marital and divisible property will likely be lost forever.  And for most people, this would be a really bad thing to lose forever.

Here is how the claim may be asserted and preserved: G.S. § 50-21(a) provides that a claim for property distribution in North Carolina may be filed as (a)  As a separate civil action, or (b)  with any other Chapter 50 action, or (c) as a motion in the cause as provided by G.S. § 50-11(e) or (f).  It is clear that an oral request is not sufficient.

In general, the claim for equitable distribution must be made after  the parties’ separation and prior to the entry of the court of the judgment of divorce.    There are a couple of exceptions in the statute that allows for property distribution claims after divorce, but these exceptions are rare.

First, G.S. § 50-11(e) provides that a defendant in an action may bring an action or file a motion in the cause for equitable distribution within six months after entry of judgment for absolute divorce if service of process in the divorce action was by publication and defendant failed to appear.

Second, G.S. § 50-11(f) provides that equitable distribution may be sought by action or by motion in the cause in an action for absolute divorce within six months after judgment is entered if the court entering judgment lacked personal jurisdiction over the absent defendant or lacked jurisdiction over the property subject to equitable distribution.