North Carolina Divorce Equitable Distribution Divested Lawyers Attorneys

BARBARA KAYE PRESSLEY BLACK v. JOE NEAL BLACK

COURT OF APPEALS OF NORTH CAROLINA

June 7, 1984, Heard in the Court of Appeals

July 3, 1984, Filed

The parties were married and plaintiff brought an action for divorce from bed and board on 1 August 1980, defendant filed a counterclaim in that action on 21 August 1980 praying for divorce on the ground of adultery, plaintiff filed an action for divorce based on one year's separation on 4 November 1981 and asked for equitable distribution, the action in which defendant filed this counterclaim was tried on 6 May 1982 at which time plaintiff's claim was dismissed and defendant was granted a divorce, defendant moved for summary judgment in plaintiff's action for divorce which was granted. The plaintiff's claim for divorce and equitable distribution was dismissed. The plaintiff appealed.

Issue:

Whether the dismissal of the plaintiff's claim for divorce requires the dismissal of her claim for equitable distribution?

Discussion:

The Court states that although the plaintiff's action for divorce was properly dismissed after a divorce had been granted in another action it was properly filed under G.S. 50-19 and could not have been dismissed before the divorce decree was made. G.S. 50-20(k) provides that plaintiff's right to equitable distribution is a species of ownership in the marital property which was vested at the time she filed her action for divorce on 4 November 1981. The statute does not say whether this property right is divested by the dismissal of her action for divorce. In the absence of an express direction in the statute, we do not believe we should hold it is divested. Hence this court finds that the trial court erred in dismissing plaintiff's claim for equitable distribution, though her claim for divorce was properly dismissed. We can find no cases in this or other jurisdictions on the precise question presented by this appeal. We reverse the order of the district court and remand for further proceedings.

Disclaimer:

These summaries are provided by the SRIS Law Group. They represent the firm's unofficial views of the Justices' opinions. The original opinions should be consulted for their authoritative content

North Carolina Divorce Equitable Distribution Divested Lawyers Attorneys

By: Atchuthan Sriskandarajah

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