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Diana WestrickDiana Westrick, Legal Assistant, Woodruff Family Law Group

If you have happened upon your browser’s home screen, Facebook, Twitter, or any news outlet, you have already been bombarded with the news that Angelina Jolie has filed for divorce from Brad Pitt.

What? How?  Why?  Say it isn’t so!

While you have to love the efforts of gossip sites to always have the “inside scoop,” the currently available details are truly hearsay.  Unfortunately, that does not stop every proceeding media outlet to quote these unconfirmed theories as if they were fact.  While I am not one to indulge in celebrity news, I do have an amazement with how celebrities and their lives are portrayed to us “ordinary” folks.  In situations such as celebrity breakups and divorce, it may surprise you that I actually pity these people; they are going through a situation that is difficult-by-nature, but they also have to worry about their public image and how the media will portray them.  Despite what the truth of the situation may be, people believe what the news and magazines tell them.

Any reasonable person most likely already knows that gossip should be taken with a grain of salt.  However, how often do we develop biases solely based on what someone told us?  Keeping that in mind, I can all but guarantee this divorce is going to be pinned onto Brad Pitt.  Most outlets are already stating the claim that Angelina filed in order to keep the “health” of her family intact; she did not agree with Brad’s parenting style, and she wants full custody while he gets only visitation.  With only those details available, where does your mind go about his parenting?

No, I’m not going to use this blog as a means of venting my frustration with celebrity politics.  Rather, I am going to turn it over to you, Triad: I urge you to consider how gossip has impacted (for better or worse) your relationships with your family, friends, acquaintances, and strangers.  Are you able to identify these different types of situations?

EXAMPLE #1 Continue reading →

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gavel

In any divorce, custody cases can be extremely complicated. While we want to believe that most parents can amicably work out an agreement that is best for the children, the reality is that there are often long and drawn-out custody battles that can exhaust the entire family. Under North Carolina law, child custody orders can be modified in two basic circumstances:  when one of the parents has violated a court order, or when one or both parents allege a substantial change in circumstances.

In the case of LaValley v. LaValley, the court held that if a child custody order is final, a party moving for a modification must first establish that a substantial change in circumstances has taken place. However, if a custody order is temporary, the court can simply use the ‘best interest of the child’ standard. Furthermore, the court highlighted that an order can be “converted” to a permanent order when neither parent seeks a date to resolve the issue within a reasonable time.

In King v. King, the plaintiff (the father) and the defendant (the mother) were married and lived together until their separation in 2008. They had two minor children. The defendant moved to Wilmington, North Carolina with both kids. Some time afterward, the plaintiff brought an action for divorce and sought child custody. The defendant filed an answer and counterclaim requesting custody.

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In our fact pattern from Part 1 of our series, the first indication of child sexual abuse was in the statements Aaron and Billy made to Grandmother. Family law attorneys in Guilford County would be wise to try to have these statements admitted under the exception in Rule 803(4) on hearsay, “Statements for Purposes of Medical Diagnosis or Treatment.” N.C.G.S. § 8C-1, Rule 803(4). While a practitioner’s first inclination may be to dismiss this hearsay exception as irrelevant since the statements were made to Grandmother who is not a medical professional, this exception is extremely flexible. To examine the Medical Diagnosis exception further, let us review the case of State v. Smith. The case of State v. Smith is directly synonymous with our fact pattern and allowed the statements made to a grandmother into evidence under exception 803(4). State v. Smith, 315 N.C. 76, 337 S.E.2d 833(1985).

In State v. Smith two cousins, young girls ages four and five were sexually assaulted by an older male family member. When the children’s Grandmother came to visit, the four-year-old told her Grandmother about the sexual assault. The Grandmother told Mother about the child’s statements, and both girls were taken to the hospital. At the hospital, the girls were examined by a doctor and spoke with a Rape Task Force volunteer who was a Registered Nurse, and the Rape Task Force Coordinator to recount the sexual assaults that had taken place. At trial, the statements of the children made to the Grandmother, the Rape Task Force volunteer, and the Rape Task Force Coordinator were all admitted into evidence under the Statements for Purposes of Medical Diagnosis or Treatment hearsay exception under Rule 803(4).

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When attorneys in Guilford County try custody cases in which there have been allegations of child sexual abuse, it is vital that statements made by the child regarding the abuse be admitted into evidence. These statements regarding abuse can be critical in determining the best interests of the child, as well as the level of supervision and involvement of the parents when the abuse of the child occurred. The primary way the child’s statements are admitted into evidence is through the child’s testimony at the custody hearing. However, a child may not testify for a variety of reasons, such as the Court finding the child incompetent to testify due to age, or the parents not wanting to expose the child to the emotional turmoil of testifying. Whatever the reason, if the child does not testify then the family law attorney will need to get the out of court statements made by the child, called hearsay statements, admitted into evidence.

Hearsay statements are generally not admissible. However, the court will allow certain hearsay statements into evidence if they fall within specific exceptions that are designated by statute. In this twelve part series, we will examine the multiple hearsay exceptions the family law attorney can utilize and the relevant cases that will assist in getting these crucial statements admitted into evidence. Continue reading →

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Diana Westrick, Legal Assistant, Woodruff Family Law Group

*This blog has practical wisdom and is not intended as legal advice.

Diana WestrickWe have all been there: something upsetting, traumatizing, and devastating occurs, and we look to those around us for comfort and support.  You know, someone who is willing to nod silently while we vent.  Now, be honest, how often does that actually happen?  The art of “listening” seems foreign to most people, despite their best intentions.  Instead, you get advice.

Don’t get me wrong; sometimes you actively seek input from other people, specifically those closest to you and your particular situation. Yet, most often, the advice seems to come in unsolicited form and only seems to add to the stress of the situation.  As a prime example, here is my advice to you that you should accept and apply whole-heartedly:  Don’t take advice.

After a separation, divorce, custody battle, or even an impending marriage, people will try to tell you what you should do. Continue reading for some of the most common post-breakup “wisdom” people like to dish out and how to respond without kicking them in the shins (while it is always an option, and may be satisfying, it is not recommended).

Scenario #1 – They didn’t really love you anyway; I saw this coming.

Desired Response:

Oh, really? You knew my 10-year marriage was doomed for failure while you helped yourself to the open bar at our wedding?  I’m glad you kept that to yourself!

Hindsight is always 20/20, except when it is not.  Some people gain satisfaction thinking that they can predict the future.  The gloating, itself, apparently is not enough; they need to share it with everyone.  Hence, bad advice.  No one knows your relationships like you do, and despite looking from the outside in, others can only speculate to the truth of your experiences.  So how do you react to these know-it-alls?  Stand your ground and assertively let them know their words are not tolerated.

Recommended Response:

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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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