In NC, does the state constitution require that the court divide marital property only after the divorce becomes final, or is that just a statutory rule that the legislature could change?

Plain-English summary

Senator Henson Barnes asked AG Lacy Thornburg a structural question about NC divorce law. G.S. 50-21(a) said equitable distribution of marital property "shall follow a decree of absolute divorce" and could not precede it. Was that timing rule constitutionally required by Article X, Section 4 of the NC Constitution (the married women's separate property clause), or was it purely a statutory rule that the General Assembly could rewrite if it chose?

The AG answered: purely statutory. The legislature could allow equitable distribution to occur at the time of the divorce decree or even before, if it wanted to. The constitution did not lock in the timing rule.

The reasoning had two layers. First, Article X, Section 4 was originally adopted to protect married women from the common-law rule that gave a husband ownership rights in his wife's separate property (rents, profits, and choses in action). The provision was, as the NC Supreme Court put it in Dudley v. Staton, "not intended to disable but to protect women." Read in light of its purpose, the section did not freeze the timing of any later legislative scheme for dividing marital property.

Second, a 1964 amendment to Article X, Section 4 added explicit language allowing the General Assembly to prescribe "regulations and limitations" on a married woman's property rights. The legislative history (in Fullam v. Brock) showed the amendment was meant to confirm legislative power in this area. And Armstrong v. Armstrong (1987) held that "Whatever the remedial purpose of the amendment, it is by its own terms subject to limitations prescribed by the General Assembly, including any statutory classification and distribution of property under the Equitable Distribution Act."

Put those two layers together and the conclusion is straightforward. The constitutional provision was a floor (no return to common-law disabilities for women's property), not a ceiling on legislative design. The current G.S. 50-21(a) timing rule was a legislative choice. If the legislature wanted to allow equitable distribution at the time of the absolute divorce or before, the constitution would not stand in the way.

The opinion mattered because it cleared a path for reform. Several practitioners had argued that combining the two proceedings (the divorce action and the equitable distribution action) was constitutionally required to be separate. The AG's analysis said no, it is just the way the General Assembly chose to structure it, and the General Assembly can choose differently.

Currency note

This opinion was issued in 1987. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. NC has since amended G.S. 50-21 multiple times to allow equitable distribution to proceed before the divorce decree under certain conditions (filing a claim before the divorce, partial distributions, etc.). The current statute is meaningfully different from the 1987 version on which this opinion turned. Anyone with a current equitable distribution question should consult the current G.S. 50-21 and current NC family-law case law.

Background and statutory framework

NC's Equitable Distribution Act took effect in 1981. Before that, NC followed the common-law "title" system, in which a divorcing spouse kept what was in their name and gave up what was in the other spouse's name. Equitable distribution replaced that with a regime in which the court classifies property as marital, separate, or divisible, values it, and distributes it equitably (presumed equal but adjustable based on statutory factors).

The 1981 statute coupled equitable distribution tightly to the absolute divorce. G.S. 50-21(a), as it stood in 1987, said the distribution "shall follow a decree of absolute divorce" and "may not precede" it. The practical effect was a two-step process: get the divorce, then start the distribution proceeding. The statutory rationale was administrative (avoiding distribution of a marital estate while a reconciliation was still possible) and conceptual (the divorce, not the distribution, was the operative event that severed the marital interest in jointly held property).

But the statutory rule had downsides. Spouses often wanted both issues resolved together, especially when one spouse needed support and the property division would determine what support was reasonable. Drawn-out two-step proceedings dragged people through extra court appearances and extra attorney bills.

Article X, Section 4 of the NC Constitution had a complex pedigree. The original provision (in the 1868 Constitution) was a married women's property clause: it protected a wife's separately-owned property from her husband's debts and from being treated as part of her husband's estate. This was a reform against common-law coverture. Over time, the NC Supreme Court read the section in light of its protective purpose. Turlington v. Lucas (1923) treated the section as abrogating the common-law rule giving the husband rights in his wife's rents and profits. Perry v. Stancil (1953) said courts should not give the section "an unnecessarily literal meaning" but should read it in light of its objects and purposes. Dudley v. Staton (1962) characterized the section as protective, not disabling.

The 1964 amendment added the clause "subject to such regulations and limitations as the General Assembly may prescribe." This was a direct response to Dudley v. Staton, which had held that statutes giving a husband the right to dissent from his wife's will and take a share of her estate were unconstitutional under the original section. By adding the legislative-regulation clause, the people of NC reauthorized legislation that affected a married woman's property rights (including dissent statutes, Fullam v. Brock).

By 1987, the question was whether that legislative-regulation clause was broad enough to authorize legislation altering the timing of equitable distribution. Armstrong v. Armstrong held that it was. The Court of Appeals said the amendment was subject to "limitations prescribed by the General Assembly, including any statutory classification and distribution of property under the Equitable Distribution Act." That language directly empowered the General Assembly to design the equitable distribution regime, including its timing.

The AG's opinion synthesized this case law. The original Article X, Section 4 was protective, not procedurally restrictive. The 1964 amendment expressly empowered legislative design. So the "must follow the divorce decree" rule, which appeared in the statute, was not a constitutional command. It was a legislative choice that the legislature could revisit.

The opinion is a clean example of separating constitutional minima from statutory choices. Constitutional law sets the floor (NC cannot return to common-law coverture). Statutory law sets the design (NC can require equitable distribution to follow the divorce decree, or allow it to precede, or merge the proceedings). The General Assembly's path was open.

Common questions

What did Article X, Section 4 of the NC Constitution actually protect women from?

The common-law doctrine of coverture, under which a wife's legal identity merged with her husband's when she married. The husband acquired ownership rights in her property (rents and profits of her real estate, ownership of her personal property and choses in action), and the wife could not contract in her own name. Article X, Section 4 carved out a separate property regime for the wife: her property remained her own, her husband's creditors could not reach it, and she could devise and convey it herself.

Why does the equitable distribution timing rule even raise a constitutional question?

Because if Article X, Section 4 says the wife's property stays her own throughout the marriage, then in theory it could be argued that any state-imposed distribution of her property at the end of the marriage is a taking of her separate property without her consent. The AG's response is that the section was meant to protect women against common-law disabilities, not to prevent the legislature from defining how property is divided when a marriage ends.

Did the legislature ever change the timing rule after this opinion?

Yes. NC has amended G.S. 50-21 multiple times since 1987 to allow equitable distribution claims to be filed and adjudicated alongside the divorce action, and to permit partial distributions in certain situations. The current statute is substantially more flexible than the 1987 version. The opinion's main contemporary value is its constitutional analysis confirming that the legislature has the design power.

What was the 1964 amendment, and why did it matter?

The 1964 amendment added the phrase "subject to such regulations and limitations as the General Assembly may prescribe" to Article X, Section 4. Before the amendment, the NC Supreme Court had struck down legislation that affected a married woman's property rights (specifically, husband-dissent statutes in Dudley v. Staton). The amendment was the people of NC saying that the legislature does have authority to regulate married women's property rights, subject only to the protective floor of the original section.

How does this opinion fit into modern NC family law?

It is historical infrastructure. The opinion confirmed that the constitutional doctrine left the legislature room to design the equitable distribution regime as it saw fit. The legislature has done so, repeatedly, and the resulting statute has converged on a more integrated process. Anyone practicing NC family law today works with the current G.S. 50-21 and decades of case law applying it, not directly with this 1987 opinion. But the opinion remains useful background when a constitutional challenge to a feature of the current statute is raised.

Source

• Landing page: https://ncdoj.gov/opinions/equitable-distribution/

Original opinion text

Requested By: The Honorable Henson P. Barnes, North Carolina Senate

Question: Does Article X, Section 4 of the Constitution of North Carolina require that an equitable distribution of property must follow a decree of absolute divorce?

Conclusion: No. The requirement that an equitable distribution of property must follow a decree of absolute divorce is a statutory requirement, not a constitutional requirement.

G.S. 50-21(a) provides in pertinent part: "Upon application of a party to an action for divorce, an equitable distribution of property shall follow a decree of absolute divorce. . . . The equitable distribution may not precede a decree of absolute divorce." The question we have been asked is whether the requirement that an equitable distribution must follow a decree of absolute divorce is purely statutory or whether it is mandated by the language of Article X, Section 4 of the Constitution of North Carolina.

Article X, Section 4 of the Constitution of North Carolina provides in pertinent part: "The real and personal property of any female in this State acquired before marriage, and all property, real and personal, to which she may, after marriage, become in any manner entitled shall be and remain the sole and separate estate and property of such female, and shall not be liable for any debts, obligations, or engagements of her husband, and may be devised and bequeathed and conveyed by her, subject to such regulations and limitations as the General Assembly may prescribe."

In responding to the question posed we have examined both decisions of our courts which generally construe the section and decisions which specifically construe the 1964 amendment to the section, which added the language "subject to such regulations and limitations as the General Assembly may prescribe".

A number of decisions of our courts have generally construed the section. In a 1923 decision the Supreme Court held that the purpose of the section was to abrogate the common-law rule which gave to the husband the right to the ownership of rents and profits from his wife's property as well as the actual or potential ownership of the separate choses in action belonging to his wife. Turlington v. Lucas, 186 N.C. 283, 290, 119 S.E. 366, 370 (1923). In Perry v. Stancil, 237 N.C. 442, 444, 75 S.E.2d 512 (1953), the Supreme Court held that in arriving at the intent of the section, "we are not required to accord the language used an unnecessarily literal meaning. . . . Constitutional provisions should be construed in consonance with the objects and purposes in contemplation at the time of their adoption." In Dudley v. Staton, 257 N.C. 572, 581, 126 S.E.2d 590 (1962), the Court acknowledged that the language was not intended to disable but to protect women.

Thus, while read literally the language of Art. X, Sec. 4 could be construed to prohibit any equitable distribution of a woman's property, either prior to or following a decree of absolute divorce, decisions of our courts indicate that such a literal construction is not required, and that the provision must be considered in light of the prior law and the mischief sought to be remedied by the constitutional provision.

Furthermore, the 1964 amendment appears to authorize legislation affecting a married woman's property rights. This amendment, unlike the original portion of the section, was passed not in response to common-law disabilities enforced against married women but in response to the decision of the Supreme Court in Dudley v. Staton, supra. In that case the Court held that statutes which gave a husband the right in certain instances to dissent from his deceased wife's will and take a specified share of her estate were unconstitutional to the extent that they diminished a devise of her separate estate in accordance with a will executed by her. Two decisions of our courts specifically discuss the amendment. A legislative history of the amendment is set out in the case of Fullam v. Brock, 271 N.C. 145, 155 S.E.2d 737 (1967), in which the Court held that the amendment authorized the General Assembly to empower a husband to dissent from his wife's will. The second case addresses the intent of the amendment, specifically the question of whether it gives the General Assembly the authority to enact general limitations concerning a woman's property or merely the authority to enact limitations concerning her rights to devise bequeath and convey her property. The Court held that "Whatever the remedial purpose of the amendment, it is by its own terms subject to limitations prescribed by the General Assembly, including any statutory classification and distribution of property under the Equitable Distribution Act." Armstrong v. Armstrong, 85 N.C. App. 93, 101, S.E.2d (1987).

Thus, neither the language of the section, its history nor its purpose as interpreted by our courts would seem to proscribe entry by the court of a judgment of equitable distribution prior to a decree of absolute divorce. Therefore, it is our opinion that the requirement that an equitable distribution must follow a decree of absolute divorce is statutory and not constitutional.

LACY H. THORNBURG
Attorney General

Ann Reed
Special Deputy Attorney General