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luggage

What would happen if you would like to move with your child, and the move would affect the current child custody agreement? Of if the other parent wants to move out of state? It is important in either of these situations to speak to a qualified North Carolina custody attorney. At the Woodruff Family Law Group, we have successfully resolved many cases for parents who have sought to relocate with their children or parents who have opposed a move. We understand how emotionally charged relocation cases can be, which is why you can expect the utmost compassion from our entire team.

In Ramirez-Barker v. Barker, the trial court had granted sole and permanent custody of the child to the mother, with frequent and extended visitation privileges to the father, after the couple separated. Some time later, the mother wanted to move out-of-state with her minor child. Specifically, she wanted to move to California. The mother filed a motion to modify an existing custody order to allow the relocation to happen.

The Court heard the evidence, which included testimony from both parents and a psychologist, the court decided the best interest of the child would be served if the   mother was not to move. The “best interest of the child” is the standard, and this broad term allows a judge to consider any factor that would be relevant to parenting as well as the child’s growth and development. Continue reading →

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Grandparents

Divorce can affect many relationships, and it is not unusual for grandparents to lose contact with their grandchildren in the process. Are you are a grandparent seeking custody or visitation of your grandchildren? If so, we may be able to help. At the Woodruff Family Law Group, our skilled North Carolina family law attorneys can meticulously analyze your facts and let you know your rights and options.

Under North Carolina law, grandparents can only seek custody and visitation with their minor grandchildren in certain circumstances. One such situation is if both the child’s parents are unfit (i.e., due to drug addiction, abuse, etc.) or unable to care for the child. An inability to care for the child may arise due to a serious disability or death. In such cases, the grandparents could report the parent’s unfit behavior or inability to care for the child to the court and request custody of the child.

North Carolina law allows a grandparent to intervene in an ongoing custody dispute and request visitation with a child. Grandparents cannot, however, seek visitation when their grandchildren are living in an intact family. In the case of McIntyre v. McIntyre, the paternal grandparents, whose son was deceased but had separated from his wife prior to his death, filed a claim for visitation with their minor granddaughter, who lived with her mother at the time. Since one parent was deceased, there was no custody action pending between the children’s parents. Continue reading →

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Now let’s change the hypothetical of our Greensboro couple – Petunia and Rocky – in one respect. Recall that Petunia’s parents wanted her to have a premarital agreement regarding Home Grown Lawn Care, but Petunia and Rocky did not sign one. Maybe a few years into her marriage, Petunia realizes that she wants to keep Home Grown Lawn Care in the family and that Rocky and her parents just do not get along. So Petunia executes a will, leaving her shares of Home Grown Lawn Care to her parents and the remainder of her estate to Rocky.

Under this scenario, Petunia’s parents would receive her shares of Home Grown Lawn Care, valued at $125,000.00. Rocky would receive the 401(k) worth $15,000.00. Rocky may decide that he is entitled to a larger share of Petunia’s estate. He can then exercise the right to elective share, which is a two-step calculation. First, you have to determine what percentage of the total net assets the surviving spouse receives. Second, you have to determine the amount of the elective share, based on the percentage calculated in step one.

Let’s take this step-by-step. The North Carolina legislature has determined that the percentage of the total net assets should vary based on the length of the marriage. Thus, the longer the marriage, the higher the percentage of the total net assets. The below chart shows the percentages, based on the statutory language in N.C.G.S. §30-3.1:

 

Number of Years Married Share of the Total Net Assets
Less than five years 15%
At least five years, but less than ten years 25%
At least ten years, but less than 15 years 33%
15 years or more 50%

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Now that we have the details and definitions out of the way, we can return to our Greensboro couple Rocky and Petunia and take a look at what happens to Petunia’s estate. Recall that Petunia died without a premarital agreement, without children, and without a will. Since Petunia died without a will, this means that she has died intestate, and her property will pass via intestacy, with Rocky as the administrator of her estate. Also recall that Petunia died with an interest in Home Grown Lawn Care worth $125,000.00 and a 401(k) worth $15,000.00, of which Rocky is the beneficiary. Also, Petunia died in a car accident five years into the marriage – this will be important later on.

Without a will, the share of the surviving spouse is governed by statute. There are other factors to consider, though, namely is the decedent (Petunia) survived by any children or her parents? The presence of either surviving children or parents reduces the share of the surviving spouse under the statute. In this case, there are no children, but her parents survive Petunia.

N.C.G.S. §29-14 (a)(3), provides for the surviving spouse’s share of   the real property as follows: “If the intestate is not survived by a child, children or any lineal descendant of a deceased child or children, but is survived by one or more parents, a one-half undivided interest in the real property.” Based on those facts, and the statute, Rocky gets ½ undivided interest in the real property. Under the facts of our hypothetical, there is no real property, meaning that Rocky gets ½ of nothing. If for example, Petunia owned a parcel of land, Rocky would get ½ of that parcel, and her parents would get the remaining half.

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Have you wondered how much of your estate is your spouse entitled? What happens to all of your assets when you die? Do you have much control over the disposition of your estate? Does having a will make a difference? To demonstrate the nuances involved in determining how much your surviving spouse is entitled to, I am going to set up a hypothetical, with a Greensboro couple – Rocky and Petunia.

Petunia owns 40% of a closely-held business started by her family, Home Grown Lawn Care, and will likely inherit another 11%. Petunia’s brother will inherit the other 49%. Petunia is engaged to Rocky, an engineer with a promising future, who has joined an engineering firm. To set up the financials, Harry makes $70,000.00 per year. Petunia, as a Vice President for Home Grown Lawn Care, has a salary of $60,000.00 per year and typical K-1 dividends of another $25,000.00 per year. Petunia also gets a tax distribution to pay the federal and state income tax on the K-1 distribution.

Neither Petunia nor Rocky have been married before, have any children, or have any college debt. They do, however, have the following assets: there are Petunia’s shares in Home Grown Lawn Care valued at $100,000.00; a 401(k) with $10,000.00 for Petunia; and a 401(k) with $10,000.00 for Rocky.

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              By Carolyn Woodruff, North Carolina Family Law Specialist, CPA, and CVACarolyn

I am constantly amazed at how people going through a divorce “fight” over “stuff” like a tea cup, a train set, a doll, or a stuffed animal. Generally, when I am using the word “stuff”, I mean personal property like tables and chairs, jewelry, or sentimental items from childhood.  The items have very little monetary value usually (some jewelry and collectibles excepted).  Sometimes the items have great sentimental value.  So, why the fight?

The columnists “Soapbox” in the Sunday magazine Wall Street Journal inspired me to contemplate personal property and its role in our lives.  Jay Leno was one of the columnists, and he talked about his one hundred and fifty cars and one hundred and seventeen motorcycles, all in working condition.  He likes the story behind his cars.  Pat Cleveland considers expensive items “meaningful” and indicia of success, perhaps why so many like Louis Vuitton purses.  Someone commented on behalf of Barbie, the Mattel doll, who states her accessories of a Corvette or outfits create imagination.

In a divorce, anger and striking out at the other side frequently takes the form of snatching and holding hostage a special, sentimental item.  So as a boy, perhaps you collected fishing lures.  The lures bring back memories of special travel and times, but have no monetary value.  There is the pink trout lure that grandma bought you when she took you to the Colorado mountains to fly fish for trout.  Priceless!  And in your divorce, your ex-wife wants to make it an earring.  Oh boy!  Continue reading →

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We previously discussed ways to protect gifted or inherited property from the claims of a child’s spouse, from the viewpoint of the parent making the transfers. It noted that the law already protects the amount of the gift or inheritance, plus any appreciation not caused by marital funds or efforts.

A need for protection does exist to the extent that the transferred property experiences “active appreciation” after the transfer—appreciation that is caused by marital funds or efforts. The best way to protect active appreciation from marital claims is to ask your child and your child’s spouse to sign a premarital agreement waiving these claims.

What if your child is unwilling or unable to sign an agreement? You can achieve a similar result by use of a trust.  Money or property placed in trust is managed by a third person, the trustee, for the benefit of your children. The law requires the trustee to act with your child’s interests in mind, and the instructions in the trust document must be followed.

Unfortunately, you cannot avoid a claim by your child’s spouse simply by creating a trust. As previously stated, there is not a need for a trust to protect the initial amount transferred to your child, plus future appreciation not caused by your child’s funds or efforts. The purpose of a trust would be protect active appreciation. But if your child simply has an interest in the trust, active appreciation in value of your child’s interest in the trust can be marital property. Continue reading →

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By Kristina Pisano, Blog Writer, Woodruff Family Law Group

I know, the last thing your teenager wants to do this summer is read. But, if you get creative with it, you might be able to get them to read a few books this summer. My 15 year old niece helped me with some of my summertime reading research, so most of this is in her opinion. She is a spirited teen who is a stellar soccer player and student, so I trust her opinion in leading me in the right direction for a good teenage view on literature.

First off, the big question: what are those creative ways to get your teenager to read this summer? One of the simplest ways is to make them feel like they are in charge of picking their book to read. All year long in the classroom they are told what book to read, and the last thing any teen wants to do is be assigned another uninteresting book to read. Take a trip to the Greensboro Public Library or Forsyth County Public Library and let them pick out a book or two that peaks their interest. Of course, get them a library card if they don’t have one already! This way it will make them feel in complete control over their choices.

If your teen has no idea what to choose, come prepared with a few suggestions. According to my niece, both the Hunger Games and Divergent book series were popular with her and her friends. If your teen has not read them yet, suggest getting the first few books, then, to keep them motivated to read, rent the DVD of the movie so you can decide which was better, the book or the movie. Another popular series my niece recommends is The Maze Runner. With four books in the set out currently, it too is another book to film series. The next book to be released in the series is The Fever Code, which will be out in the fall, so why not get your teen caught up this summer and gain some excitement about its next release.

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The previous two posts on premarital agreements have addressed future spouses who are considering signing a premarital agreement. The final two posts in this series will address the future spouses’ parents.

In particular, this post is directed at parents who have worked hard enough, and been fortunate enough, to accumulate significant property. You desire, naturally enough, to leave that property to your children. But you do not want that property to pass to your children’s spouses. How can this goal be accomplished?

Understand initially that you may not need any special measures. When a marriage ends in divorce, most states give special treatment to property acquired by gift or inheritance. In North Carolina, gifts and inheritances are defined as separate property that the court lacks the power to divide. N.C. Gen. Stat. (“G.S.”) § 50-20. Separate property includes not only the initial amount of the gift or inheritance, but also any future “passive appreciation” in that gift or inheritance—growth caused by market forces, and not by the funds or efforts of your children after they are married.

For example, assume you have investment stock, bonds, or a bank account. If by gift or devise, you transfer this property to your children, the property transferred will be separate property. Any future passive appreciation in the gift or devise will be separate property also. Upon divorce, your child’s spouse will not have any claim to separate property.

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A premarital agreement, of course, requires the consent of both future spouses. Sometimes future spouses will disagree about whether to sign a premarital agreement. The last post in this series considered this situation by addressing the spouse who wants an agreement. This post will consider the situation by addressing the spouse who does not want the agreement.

Understand initially that this is very serious issue that will affect your life forever. The decisions you make regarding this agreement will play a very important role, possibly even a critical role, in determining your financial future.

Many future spouses, especially women, when confronted with a strong request for a premarital agreement, have swallowed their reservations and signed it. Years later they discover that the effect of the agreement is to allow their spouse to leave the marriage at any time, leaving them with no property and no spousal support. Few decisions have been regretted as intensely as the decision to sign a substantively unfair premarital agreement.

Your financial future is your responsibility. You are not required to sign any premarital agreement. While many couples have such agreements, many couples also do not. You have the power to accept the famous advice of former First Lady Nancy Reagan: “Just Say No.”

You should also recognize that decisions regarding this agreement are too important to be made without assistance. You need to know what your rights would be without the agreement. You need to know the value of your future spouse’s property. You need to know what the agreement says. Do not lightly assume you know that; a trained lawyer can include provisions that seem meaningful, but are actually worth nothing. An agreement to agree, for example, is not legally enforceable. You need the advice of an attorney to guide you in making decisions about the agreement.

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