Applying for Equitable Distribution in North Carolina

Equitable distribution is a process in which the court, rather than dividing everything 50/50, determines what a fair division of the spouses’ property is. In some cases, an even split is equitable, but when a fair share is not equitable, the courts have the ability to divide the property unevenly.

Brown v. Brown

In this case, Wife appealed a trial court’s ruling that no equitable distribution application had been made in the parties’ divorce case. The general rule in North Carolina is that either spouse may bring a claim for equitable distribution after they begin to live separately and apart from each other. North Carolina law states that an absolute divorce removes a spouse’s right to equitable distribution unless this right is asserted before entry of the absolute divorce judgment. Wife’s claim in Brown is that she asserted her right to equitable distribution prior to the entry of the divorce.

Equitable distribution is not automatic in North Carolina divorces, although it is a property right among married people who are involved in divorce litigation. Spouses seeking an equitable distribution of their property must specifically apply for it. Wife in this case asserts that her equitable distribution affidavit is sufficient to establish an application for this right. The Court of Appeals disagreed.

Case law states that an assertion for equitable distribution is sufficient if it alerts the other party that such relief is being sought and informs them of the basis for the equitable distribution request. However, none of the established case law included an affidavit being filed, which is what occurred in Brown. Instead, a request for equitable distribution is typically made in one party’s complaint, answer, or motion.

The Court of Appeals concurred with the lower court’s ruling that Wife failed to make a claim for equitable distribution.

Estoppel in North Carolina Equitable Distribution Cases

Wife’s appeal in Brown also included a claim for Husband to be equitably estopped from asserting there was no valid equitable distribution claim. The Court of Appeals stated that, in order to invoke the doctrine of equitable estoppel, the moving party must prove:

• That the conduct of the other party is false representation or concealment of material fact
• That the other party had an intention or expectation that their conduct would be convincing and relied upon by a reasonably prudent person
• That the other party had knowledge of the facts
• That action based on the other party’s behavior could lead to prejudicial change

However, the appellate court found that Wife’s argument regarding estoppel was abandoned on appeal. Because she switched her argument after appeal, the appellate court notes that current case law established by Weil v. Herring does not allow parties to “swap horses between courts in order to get a better mount.” Even so, the Court of Appeals stated that Wife’s argument regarding estoppel was misplaced because there was no evidence to suggest Husband responded to her equitable distribution affidavit.

As a result, the trial court’s order was affirmed by the Court of Appeals.