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In North Carolina, a law that imposes a cooling off period can present a difficult problem if one spouse is being battered. Recently, Woman’s Day ran a piece about domestic violence and the difficulties of being an abused spouse who needs to get a North Carolina divorce. The article led off with the story of a 33-year-old woman who had enough proof of her estranged spouse’s violence to warrant getting a restraining order. Her proof included bruises. Yet, because she lives in North Carolina, she was subject to the state’s cooling off period of one year and one day from the date of separation before obtaining a divorce.

During the year and day, she had to keep paying for her husband’s health insurance until she couldn’t afford it. She suffered various health problems and needed a medical leave, during which time she lost her health coverage. When she returned to the job, she discovered that her spouse (who was also a former coworker) had been rehired, even though she had a protection order against him — and her employer was aware of it.

In November, she petitioned the governor, state attorney general, and the North Carolina General Assembly via Change.org, requesting an amendment to G.S. 50-6. This is the law that requires a cooling off period. In her petition she argued that if there is proof and an order, the victim should be able to file for divorce within 60-90 days because the existing law puts survivors of domestic abuse through unnecessary trauma and difficulty.

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Recently, Fox 8 reported about cities across the country where divorce is on the rise. Journalist Mary Kay Blakely compared the psychological toll of divorce to a triple coronary bypass. The article noted that divorce was not only expensive, but also complicated and connected to various medical problems. Thousands of people divorce each year. Around 50% of all marriages in the country conclude in a divorce. The United States ranks twelfth in the world for percentages of marriages that terminate in divorce. If you’re considering separating from your spouse, it’s worthwhile to speak to a North Caroline divorce lawyer to know your options.

The composition of our country’s divorced population has transformed over time. Certain cities have seen a huge increase in divorce. A leading genealogy research website called MooseRoots conducted a study of the percentage change of populations in various cities. In its calculation of this change in each state’s divorced population between 1970-2010, three North Carolina cities appeared on list of the top 25 cities.

The North Carolina city that was highest on the list came in at number 4 of all cities listed. It was Greensboro, North Carolina. The percent of those who divorced in 1970 was 3.02. The percentage of divorced couples in 2010 was 10.83. The percentage change between those years was 260.

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Recently, Kiplinger’s reported on “gray divorce,” or divorce among couples that have been married for 30-plus years. It pointed out the emotional and financial drains of a divorce, even when couples are older and presumed to have more security. Couples may find divorce tough if they’ve been married for so long that their assets and future plans are tied together. Often both spouses wind up living on half of the income they anticipated but many of the same expenses when they have a late-in-life divorce.

 

North Carolina is an equitable distribution state in which the court divides a couple’s property in a way that is equitable or fair, but this does not necessarily mean property is divided evenly in half. The court starts by presuming a 50-50 division is fair, but either party can submit evidence to rebut this presumption.

 

The thirteen factors the court may consider when deciding whether to deviate from an even split are: each spouse’s income and debts, support obligations in earlier marriages, how long the marriage was and the ages of the spouses, parent’s needs with the custody of a child and use of marital home, whether pension and retirement benefits are expected and whether they will be separate property, each spouse’s contributions to acquiring the marital estate, contributions made by one spouse to the other’s career or education, contributions that increased the value of the separate property, whether the divisible property was liquid or non-liquid, the difficulty of assessing interest in assets or business, each party’s tax consequences, actions by either party that increased, wasted or devalued assets, and other factors the court believes are property and just.

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Alimony is also known as spousal support and it refers to payments made by one spouse to support the other after separation or divorce. The payments may be lump sum payments or ongoing payments. Generally, post-separation alimony lasts until the divorce is concluded. However, a court may also award alimony after a divorce is finalized. In North Carolina, most spouses that were married 10 years or less don’t get awarded alimony for longer than half the marriage. Recent changes to the tax consequences of alimony under federal tax law will have a major impact in how alimony is negotiated in North Carolina.

 

Historically, alimony has been tax deductible for the paying spouse and had to be reported as income on the recipient’s tax return. In North Carolina, the payment had to be made pursuant to a written separation agreement or court order to be tax deductible and it also had to be in cash. The payment had to be made once the payer and recipient were not part of the same household. The alimony had to be paid within the year the payer was taking the deduction. The deduction could be taken regardless of whether the payer itemized deductions on his or her tax return. The former spouse’s social security number had to be included in the tax return or the deduction could be disallowed.

 

New federal tax laws will eliminate the spousal support deduction starting on January 1, 2019. Attorneys and judges have had to hurry to finalize accelerated divorces that were filed to beat the December 31 deadline. If you file before this deadline those who expect to pay spousal support will be able to deduct money from their taxable income each year, which can result in thousands in savings for higher-income tax filers.

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Some people assume it’s not romantic to anticipate the possibility that you and your spouse won’t stay together, but in truth nobody can predict the future. Often people’s feelings change as their lives change. Sometimes marriages are more difficult than anticipated at the beginning. It can be helpful for partners to discuss the possibility that their feelings will change, and hire an attorney to craft a prenuptial agreement. Forbes published an article reasoning that it can help to have a balanced conversation if your feelings change, while you have good feelings about your partner and want the best for him or her.

 

The magazine suggested that couples should consider a prenuptial agreement. Two big reasons people divorce are money and communication problems. Discussing and negotiating a prenuptial or premarital agreement can promote a healthy conversation about your financial situations. This allows both partners to go into the marriage with eyes open about finances, and in the end may stop a divorce from happening.

 

Prenuptial agreements are contracts that spouses enter before a marriage. The content of such agreements varies, but often would-be spouses agree on property division and spousal support during the divorce. Some people erroneously assume that prenuptial agreements are only for those who are famous or rich, but the Forbes article points out that every person has something of value that needs protection. A prenuptial agreement allows couples to determine what will happen to their property, inheritance, debt, and income. Generally, assets can be separated without premarital agreements, but it can help clarify matters to have one.

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Sometimes parental rights are terminated due to a parent’s failure to make reasonable progress to correct the situation that resulted in a child being removed from the home. But how does the court measure reasonable progress? And when does it do the measuring? In a recent North Carolina parental rights case, a mother appealed from the lower court’s order terminating her parental rights for failure to make reasonable progress to correction conditions that led to her being removed from the home.

The case arose when the Department of Social Services got nonsecure custody of a child. They petitioned the court, claiming she was neglected and that her home was made harmful by domestic violence between the parents. The mother had been choked in the child’s presence ,when the child was only four months at the time, and there was also a bruise on her arm. The mother had filed charges against the father for injuring the child in question’s half-sibling who had to go live with her father.

The lower court found that the child was neglected. She was placed with her paternal grandmother. The lower court ordered the mother to follow an out-of-home service agreement that required her to complete various tasks, including getting psychological and mental health assessments and refraining from criminal actions. She also had to get and keep a stable income for at least three months in a row. She was permitted 90 minutes of supervised visitation with her child each week.

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You may be wondering whether you’ll need an expert to value your property during a divorce. It may be necessary to retain one, but there are also some cases, where a property owner can provide adequate testimony about the value of assets. In a recent North Carolina appellate decision, a plaintiff appealed from the judge’s equitable distribution of his and his wife’s property. He argued that the lower court had made a mistake in valuing sports memorabilia at $190,000 when his ex-wife hadn’t provided competent evidence of the memorabilia’s fair market value.

The couple had married in 1999. They had a child while married and separated in 2015. The husband sued for child support, child custody and attorneys’ fees. The wife counterclaimed. The husband moved for equitable distribution of their property. Of particular contention were items of sports memorabilia. Some was with the husband and some was with the wife. The wife thought the father had sold the missing memorabilia after they’d separated and believed appointing an expert was critical to value the memorabilia.

In the course of the divorce, the wife subpoenaed eBay to get the husband’s purchase history. She also sent the husband a spoliation letter. The husband went to their home and unloaded various sports items. The court allowed her to inspect his apartment and storage unit and she valued the items assigned to him at $190,000, while items assigned to her were valued at $5000. Included in the $190,000 figure were items not left behind that had been removed. Among other things the husband owned 13 boxes of baseball cards that were about 3200 a piece, 200 jerseys that were about $110 each plus the value of the signature when these jerseys were signed, as well as other memorabilia. Altogether the wife believed the fair market value was $190,000.

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Becker Williams, F. Supp. 3d     , 2016 WL 878492 (W.D. Wash. 2016)

Facts: Husband and wife were married in In 2002, the husband designated the wife as survivor beneficiary of his retirement plans with Xerox.

Husband and wife were divorced in 2006. In 2007, the employer received several telephone calls from a person claiming to be the husband, who said that he wanted to change the beneficiary to his son by a prior marriage. In response to these calls, the employer sent the husband three different copies of the written form necessary to complete the change. The first two forms were not returned; the third form was returned unsigned and undated.

When the husband died, both wife and son asserted claims to the survivor benefits, and the employer interpleaded the benefits into federal court. The trial court declined to allow summary judgment, and the Ninth Circuit affirmed, finding that a telephonic change of beneficiary was potentially enforceable, even without a writing, and that a it was a material issue of fact as to whether such a designation was actually made. Becker v. Williams, 777 F.3d 1035, 1042 (9th Cir. 2015). Upon remand, the district court held a trial and addressed the merits.

Issue: Who was entitled to the husband’s survivor benefits?

Answer to Issue: The wife

Summary of Rationale: Under Washington state law, to change a survivor beneficiary, an employee must substantially conform with the terms of the policy or “[S]ubstantial compliance with the terms of the policy means that the insured has not only manifested an intent to change beneficiaries, but has done everything which was reasonably possible to make that change.”   2016 WL 878492, at *2 (quoting Allen v. Abrahamson, 12 Wash. App. 103, 105, 529 P.2d 469, 470 (1974)).

The son did not meet his burden of proving substantial compliance. First, there was no evidence that the person who called to make the change of beneficiary was actually the husband. Second, the husband’s failure to return the first two forms and his failure to sign and date the third form suggest that his intention to change the beneficiary was not complete. In this regard, the court noted that the forms themselves stated that the change of beneficiary was not valid until the form was signed and returned. “[T]he failure to complete simple, mundane tasks undermines Asa Sr.’s alleged unequivocal desire to change his beneficiary.” Id. at *3.

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In North Carolina, custody can be modified when there is a substantial change of circumstances, but importantly, this change need not be adverse. A positive change can also be the basis for a modification of North Carolina child custody. In a recent appellate decision, the court considered modification of custody in a child’s best interest at a grandparent’s request. The case arose from the modification of a 2012 custody order. The plaintiffs were the paternal grandparents of two children, and the plaintiff’s son was the children’s father. The children’s mother had gotten married since an earlier order of the court and her interests were opposed to the father and grandparents’ interests.

An earlier custody order had given the father sole legal and physical custody of the children. The mother had visitation rights. The father and children lived with the grandparents at that time. The father had limited intelligence and education and needed to rely on his parents. However, the mother admitted to the father that she used drugs and alcohol excessively at one point, and that she was hanging out with a man who was later imprisoned for meth sales. She wasn’t able to keep a job and had to move multiple times due to an inability to pay rent and utilities.

When the kids were five and two, their grandmother found the house covered in trash and alcohol and one of the kids had cut herself due to glass being on the floor. She removed the child from the mother’s home.

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Sometimes parents disagree as to the best course of treatment for a child’s mental health or health condition, or with regard to education. These issues came up in a recent North Carolina child custody appellate decision, in which a father appealed the court’s order giving a mother primary physical custody of their child, while only giving him secondary physical custody. The court had given the parents joint legal custody but gave the mother final decision making powers with regard to education and healthcare while the father retained final decision making powers with regard to sports.

The father argued the lower court made a mistake in several ways. The appellate court reasoned that the lower court’s findings were enough to support its decision about what physical custody award would address the child’s best interests, but it did hold that the lower court’s findings weren’t enough to support an award of joint legal custody with a split in decision making powers.

The case arose when the parents had one child. They lasted as a family unit for a few years when the parents decided to separate. The father asked for custody of the child. The mother counterclaimed. The father appealed from the permanent custody order.