Non-economic marital misconduct cannot justify unequal equitable distribution

A trial court improperly relied on non-economic marital misconduct when determining the equitable division of marital property.

The North Carolina Court of Appeals vacated and remanded an order awarding an unequal distribution of marital property to the defendant.

The plaintiff, a retired U.S. military service member, and the defendant married in Japan in 2005 and later moved to North Carolina. The plaintiff retired from the military in 2009, and the parties separated in 2014. In 2021, the plaintiff filed for absolute divorce, and the defendant counterclaimed for post-separation support, alimony, and equitable distribution.

An earlier pleading referenced a 2015 separation agreement requiring the plaintiff to pay $1,000 per month in spousal support, though the defendant’s amended counterclaim omitted reference to the agreement. The trial court later severed the divorce claim and granted an absolute divorce in September 2021, leaving financial issues unresolved.

In March 2023, the court ordered the plaintiff to pay monthly spousal support and the marital share of military retirement benefits. Following a bench trial on equitable distribution and alimony in April 2024, the trial court entered an order in August 2024. It found that the plaintiff possessed approximately $252,018 of the marital estate while the defendant held about $31,410. Although an equal distribution would have required a cash payment of roughly $110,304, the court instead ordered the plaintiff to pay a $250,000 distributive award, concluding that an unequal distribution was equitable. The court also required the plaintiff to maintain Survivor Benefit Plan coverage for the defendant and to pay spousal support arrears and attorney’s fees.

On appeal, the court rejected the plaintiff’s argument that the trial court erred by failing to determine the validity of the alleged separation agreement, concluding that the issue was not preserved for appellate review.

However, the court agreed that the trial court improperly relied on allegations of alcohol abuse, domestic violence, and threats when awarding an unequal distribution. Under North Carolina law, equitable distribution factors must relate to the economic aspects of the marriage, and non-economic marital misconduct cannot justify unequal division.

The court declined to resolve how Survivor Benefit Plan coverage should be treated in equitable distribution and directed the trial court on remand to allow additional evidence and argument regarding its classification, valuation, and distribution.

The 18 page opinion is Wheeler v. Wheeler, Lawyers Weekly No. 011-049-26.