Rolle v. He argues that because she asserted her claim prior to the husband's action for divorce, she stated no cause of action, and thus, the court lacked jurisdiction to enter an order of equitable distribution. Gary McIver "the husband" subsequently filed a separate action for absolute divorce based on one year's separation. North Carolina has adopted the "source of funds" rule in determining whether property is marital or separate. The husband next contends that the trial judge erred in classifying certain property as marital property.
We find merit only in the husband's last contention. He maintains that the district court never had jurisdiction over the wife's equitable distribution claim because a divorce action was not pending at the time she asserted the claim. We simply note that had the equitable distribution claim and divorce action been filed after the effective date of the amendments, the husband's argument would have been dismissed summarily. Each of these items was acquired in part with the husband's separate funds while the parties lived together, and the record reflects that loan payments were made from marital funds after the parties were married.
Section e was not amended. Smith, N. Here, recitation in the findings of the extramarital nature of the parties' premarital relationship suggests that the dating while separated winston salem judge may have improperly considered fault in making the distribution. At all times relevant to this appeal, that section provided:.
For the reasons above, we find that contention without merit. The parties were married 19 April They began seeing each other inwhen each was still married to another person. Rolle, N. Mangone N. Grishman, A. The record shows that the wife's premarital contributions to what later became the marital home consisted of services in the form of housekeeping, upkeep of the property, and helping to construct a seawall. Nor does it provide that an equitable distribution claim is void if asserted prior to filing an action for divorce. Section k now provides that "[t]he rights of the parties to an equitable distribution of marital property See also Hearings on H.
The amendments do not alter our analysis. Only married persons are afforded the protections of our equitable distribution statute. The parties lived together at the lakefront home off and on until they were married. We vacated that order on the ground that the trial judge failed to find as a fact that an absolute divorce judgment had been entered before the equitable distribution matter was decided. He interprets this section to mean that the wife's right to equitable distribution could not be asserted until a divorce action was filed.
Wade, "when both the marital and separate estates contribute assets towards the acquisition of property, each estate is entitled to an interest in the property in the ratio its contribution bears to the total investment in the property. The parties continued to live at the lakefront home and made improvements to it after they were married and until their separation in December Frances McIver "the wife" brought the present action in May seeking alimony without divorce and an equitable distribution.
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After all, the extramarital relationship involved these two parties. We reverse and remand the case. He argues that the right to equitable distribution was destroyed by the entry of the divorce decree because the wife failed to assert that right anew after he filed the divorce action.
Though we do not decide whether a spouse may have other remedies for services provided before marriage, the potential availability of equitable remediessuch as constructive trust, resulting trust, recovery in quantum meruit or quasi-contractdoes not transform property acquired before marriage into marital property subject to equitable distribution under Section See Rolle, N.
Accordingly, we conclude that it was error for the trial judge to classify as marital any interest in property acquired before the parties were married but while they lived together. Under the source of funds analysis, property is "acquired" as it is paid for, and thus may include both marital and separate ownership interests. Finally, he contends that the judge erred in classifying certain property acquired in part before marriage as marital property.
Our interpretation meshes with N. The husband finds further support for his argument in his reading of Section a. We reject his argument.
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See Smith v. We interpret Section k differently. This equitable distribution action is before our court a second time. Therefore, we find the error, if any, to be harmless. The wife's equitable distribution claim was heard again in district court. As we stated in Wade v.
The husband ass as error the trial judge's consideration of the parties' premarital relationship in classifying and distributing property. We decline to expand the Legislature's clear definition of marital property to include property acquired prior to marriage.
The divorce was granted on 8 February The wife thereafter pursued her equitable distribution claim and, in Septemberwas awarded title to certain personal property and a one-half interest in the lakefront home. We agree. The husband first contends that certain provisions of the North Carolina Equitable Distribution Act invalidate the equitable distribution order entered in the present case. Thus, for example, absent a consent judgment, the right to equitable property distribution cannot be effectuated during the one-year separation period that necessarily precedes a filing for absolute divorce; this does not mean that a claim for equitable distribution cannot be made during that period.
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The record reveals no direct financial contribution by Frances McIver toward purchase of the home during the period preceding their marriage. See Tiryakian, 91 N. Willis, 86 N. Lawrence, 75 N. Therefore, it was not error for the trial judge to consider the parties' premarital contributions in this proceeding. We are mindful that the task of the trial judge in the present case was made difficult by the limited evidence the parties put before him. This section does not provide that the right to assert an equitable distribution claim is triggered by the filing of a divorce action.
Furthermore, we accord great weight to the language, " Our interpretation is consistent with recent amendments made to Sections k and a. At all times relevant to this appeal, that section provided in part:. He next argues that contributions before the marriage toward acquisition of property should never be considered in an equitable distribution proceeding.
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However, she performed housekeeping chores, helped with the upkeep of the property, and assisted in building a seawall along the shore. We reject the husband's reading of the original version of the statutes and hold that the wife's claim for equitable distribution was valid and appropriate for determination by the district court judge.
Tiryakian, 91 N. In applying the source of funds rule, the financial or other contributions by the marital and separate estates toward the acquisition of property must be identified and ed for. McLeod v.
That statute is unambiguous: property must be acquired during marriage to be classified as marital property, and only marital property is subject to distribution. Even so, the record shows that there was evidence that the lakefront home and pontoon boat consisted of both marital and separate interests. McLeod, 74 N. Tiryakian v.
Intwo years before they were married, Gary McIver financed the purchase of a lakefront lot and mobile home, making a downpayment with funds from the sale of a home owned by him and his first wife. However, the husband does not assert, and we see nothing to indicate, that the husband was prejudiced by this consideration. Furthermore, the second quoted sentence makes it clear that alternative means of requesting equitable distribution exist, specifically permitting a party to assert the right in a separate action, as occurred in the case before us.
Instead, we read this section to mean that the right to equitable distribution is an inchoate right exercisable only in a divorce action. Cable, 76 N. Misconduct not related to the economic condition of the marriage is not an appropriate consideration under the third step.
Thus, premarital contributions are relevant in an equitable distribution proceeding, to the extent those contributions constitute separate property, entitling the contributing spouse to credit when property of mixed marital and separate character is distributed. The North Carolina equitable distribution statute, N.
See generally, Cable v. Nothing in this section mandates the precise time that application for equitable distribution must be made; it merely provides that the actual distribution of property must follow a divorce decree. Finally, the third quoted sentence establishes a parallel rule for the sequence of divorce and equitable distribution judgments when the equitable distribution claim is asserted in a separate action. He further argues that the wife was barred from obtaining a distribution of property because she did not raise anew her right to equitable distribution in the separate divorce action prior to entry of the divorce decree.
We disagree. In doing so, the judge operated under a misapprehension of the law. He first asserts that the judge improperly considered fault in making the distribution. The husband relies only on the first quoted sentence to conclude that one must be a party to an existing divorce action before an equitable distribution claim may be asserted. The husband appealed dating while separated winston salem equitable distribution order to this court. We believe that the first sentence speaks only to the proper sequence of judgments when a party to a divorce action also asserts a claim for equitable distribution in the same action.
It appears from the record, as the husband maintains, that the trial judge improperly relied upon the parties' premarital relationshipin particular, the fact that they lived togetherin classifying certain property as marital.