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Equitable distribution is the process of dividing assets and debts accumulated during a marriage. The process involves four steps: identification, classification, valuation, and distribution.

Identification requires each party to list all assets and debts whether in one spouse’s or both spouse’s names. This includes property owned with third parties. Assets include real property, bank accounts, investment accounts, retirement accounts, brokerage accounts, stocks, bonds, mutual funds, automobiles, boats, trailers, IRA account, 401K accounts, business interests, life insurance policies, and any individual property valued at $500 or greater such as furniture, jewelry, artwork, and tools. Debts includes mortgages, credit cards, car loans, personal loans, student loans, and care credit accounts. If in doubt, disclose everything to your KYA law attorney.

Classification is the process of determining the type of property for purposes of equitable distribution. Property is either marital, separate, divisible, or mixed property. The classification determines how the property is treated when dividing the couple’s assets.

  • Marital property is all property acquired by either or both spouses during the marriage, prior to the date of separation that does not fall under the definition of separate or divisible property. The presumption is that all property acquired during the marriage is marital property unless proven otherwise.
  • Separate property is real or personal property that either spouse owned prior to the marriage or inherited or received as a gift during the marriage.
  • Property is classified as divisible under several circumstances. The most common examples of divisible property are the change in value of property and passive income such as interest and dividends from marital property after the date of separation but before final distribution.
  • Mixed property has characteristics of two of more classifications. An example would be a home that was in the wife’s name prior to marriage. After marriage, the home is still classified as her separate property. However, if marital funds are then used to make mortgage payments, the increase in value would be marital property.

After all property and debts are identified and classified, the next step is to determine the fair market value for each item as of the date of separation. This may require the use of one or more appraisals. If the parties cannot agree on the value and cannot agree on an appraiser, the court may appoint an appropriate professional to conduct the valuation. Usually these fees are split equally between the parties. Appraisals are frequently required for valuation of real property and business interests.

The final step is property and debt distribution. Prior to a judge undertaking this task, the parties will be ordered to participate in Family Financial Mediation. During this process, you and your attorney will meet with a NC Certified Family Financial mediator who will attempt to help the parties reach their own property distribution agreement. Our lead attorney, Kelli Allen, is certified to conduct Family Financial Mediation and can offer particular insight into the mediation process.

If the parties are unable to agree on the division of property, the judge will determine which spouse shall have ownership of each asset and assume responsibility for each debt. This is based on the principle of “fairness”. In North Carolina, the presumption is that an equal distribution is a fair distribution. However, either party may request that the court make an unequal distribution if he or she can demonstrate that the only way to obtain a fair result is through an unequal distribution of property. The factors used to determine whether a deviation is proper are found in North Carolina General Statute 50-20 and include:

  • The income, property, and liabilities of each party at the time the division of property is to become effective.
  • Any support obligation from a prior marriage.
  • The duration of the marriage
  • The age and physical and mental health of both parties.
  • The need of a parent with custody of a child or children of the marriage to occupy or own the marital residence and to use or own its household effects.
  • The expectation of pension, retirement, or other deferred compensation rights that are not marital property.
  • Any contribution made by one spouse to help educate or develop the career potential of the other spouse.
  • Any direct contribution to an increase in value of separate property which occurs during the course of the marriage.
  • Whether the property is liquid.
  • The tax consequences to each party.
  • Acts of either party to maintain, preserve, develop, or expand; or to waste, neglect, or devalue property, during the period after separation of the parties and before the time of distribution.

The attorneys at KYA Law will help determine your priorities and develop a plan designed to achieve the most beneficial property distribution for our clients.

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Law Office of Kelli Y. Allen, PLLC

10150 Mallard Creek Rd, Suite 105
Charlotte, NC 28262

Phone: (704) 870-0340

Regular Hours
  • Monday - Friday 9:00 Am - 5:00 PM
  • Saturday & Sunday Closed

Also available by Text (704) 727-4310 or Live Chat

Service Area:

Charlotte and surrounding areas.