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Jennifer A. Crissman, Attorney, Woodruff Family Law Group

            The name “Responsible Individuals List” may sound like an accolade to parents; however, this is a misnomer. For those unfortunate enough to find their family in the midst of an investigation of child abuse, neglect, and dependency the List is likely to be mentioned. It is important that anyone who finds themselves in this situation be aware of what the term means and the ramifications of being on this list.

The Responsible Individuals List and Consequences

            The actual list is comprised of the names of individuals who are found to be responsible for the abuse and serious neglect of a juvenile. The List was created by statute in 2006 in response to federal requirements under the Child Abuse Prevention and Treatment Act (CAPTA). The primary goal of the federal regulation was to create a child abuse registry that was accessible to certain authorized agencies which must determine the fitness of an individual to care for or adopt children.

In 2010, the NC Court of Appeals held that placement on the List impacts an individual’s Constitutionally protected liberty interest. In re W.B.M., 690 S.E.2d 41 (N.C. App. 2010). Placement on the List can prevent an individual from being able to care for children, whether it be through employment, fostering or adopting. Although the List can affect a person’s ability to care for children, the statutes do not address the length of time an individual is placed on the List. The statutes also do not provide for an expungement procedure after a specified period has expired.

The List and Caring for One’s Children

            Although placement on the List can prevent a person from adopting or fostering, the List does not necessarily prohibit an individual from caring for their child. There are currently no cases in North Carolina that address being added to the Responsible Individuals List and then being denied reunification with your children. Further, North Carolina statute, the North Carolina Administrative Code and the Department of Social Services Manuals only address using the Responsible Individuals List for employment purposes or foster/adoption/kinship placement determinations. Currently, it appears the impact of being placed on the Responsible Individuals List is limited to children who are not biologically your own.

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by Benjamin Neece, Attorney

With Valentine’s Day around the corner, love is in the air and it is a great time to express it to those who you care about most.  It is important that during this festive season that you remember that your children are the ones who need your love the most and we are here to help with some creative ideas on how to make the most of your time with them.  When it comes to time with your children, it is important to remember the deliberate nature in which you must approach each moment you have with them.  Visitation must become more than simply being together; it is of the utmost importance to engage your children, take part in new and exciting experiences with them, and create lasting memories that you can share together for years to come.  Valentine’s Day is a great opportunity to express and grow the love between you and your children and it never hurts to have a few ideas in your back pocket to make your time together special.

For younger children Valentine’s Day is a big deal; a good way to keep within the spirit of the holiday is to set aside time for fun and celebration.  A trip to Charlotte, NC provides many options to accomplish this.  Charlotte is home to the Discovery Place Museum- a childhood utopia that is sure to keep everyone entertained while engaging in interactive learning.  Afterwards, crafting valentines to exchange with each other and even take home is a great way for kids to express their love to both parents in a meaningful and fulfilling way. Continue reading →

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Anderson v. Comm’r, T.C. Memo. 2016-47, 2016 WL 976816 (2016)

Facts: An Alabama court entered a pretrial order in a divorce case, requiring both parties to “[m]aintain status quo as to payment of house note or rent, utilities, food, necessities, fixed credit obligations, ” 2016 WL 976816, at *1. After the order was entered, the husband transferred at least $1,000 each month to the wife “for her spending money and other things that I had previously paid for.” Id.

The husband took an alimony deduction for the amounts paid. When the IRS did not allow the deduction, the husband then appealed to the Tax Court.

Issue: Were the payments alimony for federal tax purposes?

Answer to Issue: Summary of Rationale: The first requirement in the federal definition of alimony states that it must be received under a “divorce or separation ” I.R.C. § 71(b)(1)(A). A “divorce or separation instrument” includes “a decree of divorce or separate maintenance or a written instrument incident to such a decree.” Id. § 71(b)(2)(A). A pretrial order is not a divorce decree, but it is a written instrument incident to such a decree. Thus, the premarital order was a divorce or separation instrument.

The pretrial order directed the husband to maintain the status quo. The husband testified that the payments were intended to cover things he had previously paid for. He was therefore maintaining the status quo, as required by the order, so that the payments were received under a court order. There is no requirement that the divorce or separation instrument list the specific exact amount of support required.

The pretrial order did not specify whether the payments stopped upon death. But the payments occurred periodically, so they were periodic alimony, and Alabama case law stated clearly that periodic alimony ceases upon the death of the payee. Because the payments stopped upon death, they were alimony for purposes of federal tax law.

Lesson: Temporary support, alimony pendente lite, or postseparation support can all constitute alimony under federal tax law, so long as it is clear from the language of the agreement or the order, or from state law if the order is silent, that the obligation terminates upon death of the payee.

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Wolens v. United States, 125 Fed. Cl. 422 (2016)

Facts: The parties married in New York, but divorced in England. Their English divorce decree provided for a large initial payment to be made by the husband to the wife, followed by annual payments of £441,667 in 2007, 2008, and 2009. (The 2009 payment was one pound less.)The husband’s initial tax return did not claim the 2007 payment as alimony. He later filed an amended return which did claim the 2007 payment as alimony. The IRS disallowed this return and refused to issue a refund.

The husband then filed suit in the Court of Federal Claims to obtain the refund. The IRS then moved to dismiss the action, arguing that the husband could not establish that the 2007 payment terminated upon death of the payee. The husband filed a motion for summary judgment, arguing that the payments clearly did terminate.

Issue: Was the 2007 payment alimony?

Answer to Issue: The answer depends upon material issues of fact; the motion to dismiss and motion for summary judgment are therefore denied.

Summary of Rationale: If the 2007 payment did not terminate upon death of the payee, it clearly could not be alimony for federal tax purposes. The agreement itself was silent on this point. The key question was therefore whether the payment automatically terminated at death under the controlling domestic relations law. “[A]lthough the government has shown that the term ‘lump sum’ is typically associated in the United Kingdom with a division of marital assets, it has not established that this is the only reasonable interpretation” of the agreement. 125 Fed. Cl. at 430. In particular, the annual payments might be construed together as a periodic obligation, instead of being construed separately as individual lump-sum obligations. The IRS’s motion to dismiss was therefore denied.

The husband’s motion for summary judgment was also denied, for essentially the same reason; the decree was ambiguous, and its construction was therefore an issue for trial. Continue reading →

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Child

When a marriage breaks down, the question of child custody becomes inevitable. This can often be the most emotionally charged and even contentious part of a divorce. At the Woodruff Family Law Group, our compassionate and hard-working North Carolina child custody attorneys will let you know your rights as well as your options during this difficult time.

In Heatzig v. Maclean, a biological parent of children conceived through artificial insemination disputed the rights of her former same-sex domestic partner. The couple lived together and took care of the children for three and a half years. The relationship ended and the defendant left the shared home and took the children with her. The plaintiff filed a lawsuit seeking joint and physical custody of the children.

The court assessed the following factors:  i) the plaintiff and the defendant made a joint decision to create a family unit; ii) the defendant deliberately identified the plaintiff as a parent; iii) the sperm donor was chosen based on certain physical characteristics similar to those of the plaintiff; iv) the plaintiff’s last name was used as one of the child’s last names; v) the plaintiff was present throughout the pregnancy and took part in the child’s birth; vi) both the plaintiff and the defendant were identified as parents at the child’s baptism; vii) the plaintiff was listed as a parent on the child’s school forms; and viii) the plaintiff had the authority to make medical decisions for the child. The Court noted the defendant had been trying to get pregnant for a while before she began her relationship with the plaintiff.

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Legal CustodyWhen the parents of minor children split up, they need to figure out how and if they will share custody of their children. North Carolina parents are free to agree upon any custody and visitation agreement they deem best for the family. If the parents decide on an agreement, they can do that without the need for a trial, if they get the approval of the court. However, if the parents cannot reach an agreement, a court decides the matter. At the Woodruff Family Law Group, our seasoned North Carolina child custody attorneys have the skill, knowledge, and determination to handle your child custody case.

Under North Carolina law, there are two types of custody:  physical custody and legal custody. The parent with whom the child lives has physical custody of the child. The parent who has physical custody is responsible for the supervision and day-to-day physical care of the child. Legal custody pertains to the parent who has major decision-making powers over the child, specifically in the following ways:

  1. Regarding the child’s education, health care, and religion.
  2. Important matters regarding the child’s welfare and overall life.

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LawyerWhen parents decide to split up, it can be extremely difficult for the child to adjust to the change. When a parent decides to move to another state, the change can be even harder to deal with. At the Woodruff Family Law Group, our skilled North Carolina child custody attorneys understand the nuances of family law and can help you determine your legal rights and options.

In North Carolina, parents are free to decide on any custody arrangement they see fit. Child custody lawyers usually work with parents to create a routine for the children that works well for all parties involved. However, if parents are seen as unable to decide the custody or visitation arrangement, a judge will make that determination. North Carolina law requires judges to decide child custody matters using the “best interest of the child” standard.

If a parent needs to move to another state for a new job, new relationship, or other needs, a whole new custody agreement will need to be created. If you have an existing custody order in place, relocation out of the state can be a violation of that order, subjecting you to potential court-imposed sanctions, including contempt, an order to return the child, and possibly paying costs or attorneys fees. As a result, you would need to seek a modification of that order before relocating, and any changes that are made to the existing child custody agreement are required to be accepted by both parents.

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Leesa M. Poag, Attorney, Woodruff Family Law Group

Boy meets girl. They fall in love.  Before you know it, he’s down on one knee with an expensive diamond ring in his hand.  With Valentines Day quickly approaching, it is a scene that is sure to play out all across the Triad.  But what happens when the relationship ends before the wedding bells have even had a chance to ring?  When instead of meeting with a wedding planner, the couple is turning to a family law attorney for advice.

As difficult as a broken engagement can be on a couple, the heartache and hard feelings only grow more intense when the formerly-engaged couple cannot agree on who should keep that shiny souvenir of the marriage that was never meant to be. When the plan changes from walking down the aisle to walking away, there is still that lingering question that must be answered – who gets to keep the engagement ring?

Under the early common law, Courts allowed these jilted fiancés to recover monetary damages when the wedding was called off under a claim of breach of promise to marry.  Though the legal system seems to have realized that you can’t put a price tag on a broken heart and distanced itself from these types of claims, the question of the engagement ring is still a remarkably common dispute facing the courts today.

Should the person who initially purchased the ring be entitled to its return?  If it was given as a gift, should the recipient be allowed to keep it?  The majority of courts have held that the answer to those questions comes down to the intention of the giver.

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Dana M. Horlick, Attorney, Woodruff Family Law Group13062458_1042739802458603_2436945721037467362_n-214x300

 

Directly after the holidays happens to be one of the busiest times of the year for divorce attorneys when it comes to divorce filings. The increase in divorce filings is a trend that is seen nationwide, including here in Greensboro, North Carolina. According to the American Academy of Matrimonial Lawyers, there is typically a spike of 25% to 30% in divorce filings every year in January. There is a similar trend in the United Kingdom, where one in five couples plan to divorce after the holidays.

Now when you think about it, this trend makes sense, given the nature of the holidays themselves and the sometimes adversarial nature of the divorce filings themselves. There are several factors at play when it comes to the uptick in divorce filings right after the holidays and at the start of the new year.

One thread deals with the holidays as a precipitating factor towards a divorce filing. The holidays may be a stressful time for couples, especially when there are already difficulties in the marriage. There is the financial stress of getting through the holidays and purchasing the presents. There is also the factor of spending time with your in-laws or just having an increased amount of family time. You might be in the house with your partner for an extended period. If there are problems already present in the marriage this can become an issue; even without pre-existing problems, this may place a strain on the relationship. Having to put on a happy face for your relatives and your children can also be very stressful.

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Child

Life after divorce can be difficult and made even more challenging when custody disputes are involved. North Carolina law was designed for the reality that people’s circumstances can change from time to time, and they may need to modify existing custody orders accordingly. When parents cannot agree on which changes are appropriate, the court will decide whether a modification is necessary based on substantial changes in circumstances.

Substantial changes in circumstances can include serious changes, such as the loss of a job, remarriage, or relocation of one parent. Of course, there could be other factors that the court deems ‘substantial’ as well. Any time that a parent claims that a substantial change in circumstances has occurred, the court will likely require proof and documentation of that change.

In the case of Hibshman v. Hibshman, a judge initially entered an order changing primary custody of a couple’s children from the mother to the father, but the judge did not first decide that there had been a substantial change in circumstances.

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