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By Carolyn J. Woodruff, North Carolina Family Law Specialist

Dullea v. Pension Benefit Guar. Corp., 241 F. Supp. 3d 155 (D.D.C. 2017)

Background: There are two ways in which state courts can make a deferred future division of retirement benefits. The traditional method is the shared interest approach, which awards the nonowning spouse a portion of each future payment received by the owning spouse.

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By Carolyn J. Woodruff, North Carolina Family Law Specialist

Patterson v. Chrysler Group, LLC, 845 F.3d 756 (6th Cir. 2017)

Facts: A divorce decree awarded the wife an interest in the husband’s retirement and survivor benefits, expressly ordering him not to elect a survivor beneficiary other than the wife. The wife did not obtain a QDRO.

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By Carolyn J. Woodruff, North Carolina Family Law Specialist

Yancey v. Comm’r, T.C. Memo. 2017-59, 2017 WL 1289451 (2017)

Facts: A husband and wife filed joint returns. The returns were prepared by the wife. The returns understated the amount of tax due, mostly because they wrongly double-counted certain gambling losses incurred by the husband.

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by Leesa M. Poag, Attorney

Prior to the beginning of each session of court, a calendar call takes place.  Family law attorneys across the Triad are familiar with this process in which hearing dates are selected prior to an upcoming session of court.  Though it may seem simple to select a date for your hearing and report it to the court, there are several factors that must be taken into account prior to selecting a hearing date.

The first consideration for calendar call is what issue has been calendared for hearing during the session.  Is it one that will require a trial, such as custody or equitable distribution, or is it only a motion that needs to be heard, such as a motion for summary judgment or motion to compel? You must be clear on exactly what it is that has been noticed for hearing before selecting a hearing date.

A second factor that should be considered prior to calendar call is whether the issue is ready to be heard.  Before a hearing can occur, the opposing party must be served with notice of the issue that you are asking the court to hear.  Without proper notice to the opposing party, the court will not be willing to hear your case, and you will be forced to continue your hearing to another session of court.  If you have only recently filed the complaint with the claim you want heard, you should also consider whether the opposing party has had time to respond to your complaint.  If the opposing party’s time to answer has not expired, this could also cause the hearing on your claim to be delayed.

The status of the case as a whole is also important. There are some claims that should be heard before, or at the same time as, other claims.  For instance, since the custody arrangement will affect the calculation of child support, it is often most efficient to hear child support either at the same time as custody, or after a custody order has been entered in order to prevent duplicative hearings.

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by Benjamin N. Neece, Attorney

            Equitable Distribution, in a nutshell, is giving each party to a marriage what they are entitled regarding property acquired during the marriage.  As one of the pillars of many divorce proceedings, it is commonly the most complex aspects, requiring extensive research into the lives of individuals going through a divorce.  In some instances, the parties to a divorce can amicably agree as to how the property acquired during the marriage shall be distributed, and in some instances where parties fail to agree, distribution may be simple due to the nature, amount, and availability of information regarding marital property. In other instances, the parties cannot agree, and the marital assets are numerous, complex, and difficult to find; this situation can create a very tall task for attorneys in properly representing client interests.

A recent North Carolina case, Uli v. Uli (N.C. App., 2017), breaks down equitable distribution in an effort to comprehensively explain how North Carolina courts are to handle these types of claims.  North Carolina courts conduct a three-step analysis to determine what is marital property, what is divisible property, and how to provide for an equitable distribution between the parties.  First, the court must identify and classify the property as marital or separate based upon evidence presented regarding the nature of the asset.  Next, the court must determine the net value of the marital property as of the date of separation. Lastly, the court must distribute the marital property equitably. Smith v. Smith, 433 S.E.2d 196, 202-203 (1993).

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by Benjamin N. Neece, Attorney

The two big classifications of property in all equitable distribution cases are “marital” and “separate” property.  These are the ones the get all the attention and are subject to some of the most intense scrutiny and debate; however, there is a third area of property that is equally as important and can at times, prove to be a valuable player equitable distribution cases. Yes, I am talking about “divisible property!”  Continue reading →

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by Benjamin N. Neece, Attorney

A great aspect of living in the triad area is the rich history of successful businesses that put down roots in the community and prospered over the years.  Greensboro is home to very familiar brands such as Wrangler and Volvo, and right down the road is High Point, which is known for being one of the largest home furnishing manufacturing areas in the country.  Business and industry have been drawn to the area for years, and a growing population provides ample opportunity for entrepreneurs of all sizes to flourish.  Some of the area’s most vital businesses are ones defined as “closely-held,” or more commonly referred to as, “Mom and Pop” businesses.  Unfortunately, sometimes, Mom and Pop do not see eye-to-eye, which may jeopardize the future of these businesses. Continue reading →

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By Carolyn J. Woodruff, North Carolina Family Law Specialist

It is a privilege in our society to be in a civil courtroom. Courtrooms are places of decorum and are necessary to our system of justice and our freedom. Without witnesses, a trial cannot go forward. Without trials, our freedoms suffer. It is simply part of being a citizen of this great United States.

How does a courtroom look?

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Dear Carolyn,

I believe I am the Father of a son, but the Mother is married to someone else.  I dated Mother while she and her husband were separated, but now they are back together.   We had sex during the time we were dating and the child was born 9 months later—perfect timing for the child to be mine. Mother and Mother’s husband will not let me see the child, and quite frankly, hide him from me.  I want to see my son.  What can I do?  I do not have any other children.

Bewildered Father

Dear Bewildered:

You have a chance for visitation, and here’s what you will need to do.  North Carolina has a very strong presumption that a child born of and during a marriage is the child of the Husband to the marriage.   You will have to file a lawsuit asking for visitation and asking that the presumption be overcome.

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Dear Carolyn:

I have a family member who is separated. Before the separation, this person purchased a house with the deed only in her name and the deed of trust in both names. How will the courts view this property for equitable distribution? My family member thinks that since the property is only in her name that the other party has no rights under equitable distribution. Can you explain the difference between Deed and Deed of Trust?

Thanks

Carolyn Answers….

This is a very interesting and quite technical question. So, thank you for writing.  I’ll start first with the definitions of deed and deed of trust.

A deed is the ownership or title documents; by analogy, your car title is a title document for a car like a deed is the title document to your home. Thus, the deed states who owns the home, and generally on the deed the owner is referred to as the grantee. This ownership document (deed) is registered at the Register of Deeds.

A deed of trust is the security for the debt or Promissory Note. When you buy a home or get an equity line on your home, you sign a Promissory Note to the lender. At the time of borrowing, you also sign a document called a deed of trust as security (a lien); if you do not pay the Promissory Note, the signatures on the deed of trust allow the lender to foreclose on the home and take the home away from you. If you examine the deed of trust, you will notice that the lender is the beneficiary of the deed of trust, and that there is a trustee. It is the trustee that forecloses if the Note is not paid. When the Note is completely paid, the lender is required to cancel the deed of trust on the public record at the Register of Deeds. We are one of about twenty states that use the “deed of trust” system.  The majority of states use a “mortgage” system.

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