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Walsh v. Dively, 551 B.R. 570 (W.D. Pa. 2016)

Facts: When husband and wife were divorced in Pennsylvania, they agreed that the wife would receive 50% of the husband’s The agreement was incorporated into the divorce decree, but no DRO was entered.

The wife then filed for Chapter 7 bankruptcy. The bankruptcy trustee moved in bankruptcy court for authority to ask the state court to issue a DRO. The bankruptcy court denied the motion. The trustee then appealed.

Issue: Should the trustee be permitted to seek a DRO?

Answer to Issue: No

Summary of Rationale: The trustee has a duty to collect property of the estate in bankruptcy.  But retirement plans with an antialienation provision are not part of an estate in bankruptcy. Patterson v. Shumate, 504 U.S. 753 (1992). The retirement plan at issue was governed by ERISA, and it was subject to the statutory antialienation provision in ERISA unless a QDRO was entered. Because a DRO had not even been entered, let alone qualified by the plan, there was no QDRO, and the antialienation provision remained operative. Thus, the pension was not part of the wife’s estate in bankruptcy.

Note: As we shall shortly see, it is quite important that the state court awarded the wife an actual interest in a retirement plan, and not an award of cash she could spend freely for any purpose.

 

In re Kizer, 539 R. 316 (Bankr. E.D. Mich. 2015)

Facts: In a consent judgment of divorce, a court awarded the husband 50% of three retirement accounts owned by the wife. The wife was also awarded the marital home, but required to pay the husband for his interest. Because she lacked the funds to make the payments, she agreed to pay for the home by giving up her interest in the requirement accounts, increasing the husband’s interest to 100%.

QDROs were subsequently entered and approved, directing the administrators of the accounts to transfer to the husband 100% of the balance of certain accounts. The plan administrators complied with the QDROs by giving the husband accounts containing the funds at issue. A finding of fact was made that the husband could make withdrawals from these accounts at any time, without any form of early withdrawal penalty. (The husband claimed that his withdrawals were subject to a penalty, but he failed to produce supporting evidence, even after the court gave the husband additional time.)

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By Sade Knox, Intern, Woodruff Family Law Group

King v. Giannini-King, 784 S.E.2d 237 (N.C. Ct. App. 2016).

Facts: In October 2001, Plaintiff (father) and Defendant (mother) were married and then separated, about seven years later, in early June 2008. Two minor children were born to the parties’ marriage. After the separation, Defendant relocated with the minor children. Subsequently, to Defendant’s relocation, Plaintiff brought an action for divorce from bed and board, child custody, and equitable distribution. Defendant filed a motion to dismiss, a motion to strike, in addition to a counterclaim for custody, child support, alimony, etc.

The trial court initially granted both parties temporary joint legal and physical custody of the minor children. The trial court, nearly a year later, entered a custody order, granting Defendant permanent legal and physical custody of the minor children, and permitted Defendant’s relocation of herself and the minor children to Wilmington, N.C.

Plaintiff was granted visitation rights and relocated to Southport, N.C., where the parties began to modify their custody schedule. Plaintiff later remarried and returned to Person County. Soon after, Plaintiff filed motions alleging a substantial change in circumstance, which resulted in the trial court transferring primary physical custody of the minor children to Plaintiff, temporarily, and allowed Plaintiff to relocate the minor children to Person County.

Defendant filed a motion asking for a new trial, or set aside the temporary order, shortly thereafter, which the trial court denied.  Finally, in mid-December 2014, the court entered a permanent order that granted both parties joint legal and physical custody of the minor children. Defendant appealed arguing the trial court had erred in their custody orders.

Issue: Whether Plaintiff’s argument concerning the temporary custody order was appropriate for appellate review. Was there enough evidence to support a substantial change in circumstance?

Answer to Issue: No. Yes. Continue reading →

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By Sade Knox, Intern, Woodruff Family Law Group

Chafin v. Chafin, 791 S.E.2d 693 (N.C. Ct. App. 2016)

Facts: In late 1988, Plaintiff and Defendant entered into a marriage that lasted about twenty years before the parties separated in June of 2008. During the years of the marriage, Defendant was an owner of a close to non-profiting auto-sales company in North Carolina. The company operated during the marriage up until the date of separation between the parties, which was when the company had dissolved, in 2008. That following year, Plaintiff filed a complaint seeking equitable distribution of the marital and divisible property and provided inventory affidavits listing the assets of the marital home shared by the parties and the company that Defendant owned. The company’s assets mainly included the bank accounts, vehicle inventory, and Cash on Hand. Defendant failed to follow the trial court’s order to serve his equitable distribution inventory affidavit but, later served an affidavit in response to the proposed pretrial order, objecting to Plaintiff’s classification of the company’s assets.

Because of the evidentiary support provided by Plaintiff, the trial court found that the assets in question were marital property and awarded Plaintiff a lump sum that Defendant was required to pay in monthly payments. Though Defendant argued otherwise, the court found that due to Defendant’s income and assets from his employment, he was capable of distributing award to Plaintiff. Defendant went on to file four motions that were denied, but eventually, the court allowed Defendant’s motion to preserve the record in which evidence was offered to show that not all vehicles listed on the pretrial order were on the auto company’s lot on the date of the parties’ separation. Defendant appeals the trial court’s other findings.

Issue: Whether all the mentioned assets of the auto company and the shared home were marital and divisible property and correctly stated.

Answer to Issue: Yes.

Summary of Rationale: All personal and real property acquired by either spouse, during the marriage up until the date of separation is marital property. Defendant, owner of the auto sale company, deemed the company as personal property and the shared home was real property, both of which were acquired by the Defendant during the period of the parties’ marriage, classifying both the company’s assets and the home as marital property.

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By Sade Knox, Intern, Woodruff Family Law Group

Kelley v. Kelley, T.C. Memo. 2017-798, 2017 WL 1251018

Facts: Husband and wife were married in 1982. They later entered into a Separation and Property Settlement Agreement upon their separation in 1994 (the “1994 agreement”). The two later divorced in 1999. The 1994 agreement resolved several issues between the two such as child support, alimony, and equitable distribution, but most importantly, the agreement contained a “Modification and Waiver” clause. In 2003, approximately nine years after the parties separated and four years after their divorce, the parties allegedly signed a document titled, “Amendment to Settlement Agreement.”

The ex-wife, approximately eleven years after the parties entered into the 2003 Amendment, filed suit against ex-husband alleging he had breached the 2003 Amendment. Ex-husband responded by filing a motion for summary judgment, which the trial court denied. Ex-husband appeals to the Court of Appeals of North Carolina.

Issue: Whether the ex-husband breached the 2003 Amendment.

Answer to Issue: No.

Summary of Rationale: Within the 1994 agreement, the “Modification and Waiver” clause explained that any modification or waiver of the agreement shall be consistent with the original formality of the agreement and reduced to a writing. In addition to being reduced to a writing, modifications also needed to be acknowledged by both parties before a certifying officer.

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Dear Carolyn:

My soon to be ex-wife lied under oath in Guilford County Court for personal gain (money). She over-stated expenses and I am paying P.S.S. Can I charge her with perjury and sue her?

Thanks!

-P.J.

Carolyn Answers….

Dear P.J.:

Unfortunately, this is a frequently asked question in family law and divorce cases.  It seems that, almost always, someone thinks one side or the other is lying.  For all readers’ information, P.S.S. is Post Separation Support, a temporary form of alimony.  The question is as follows:   what can you do about the false statement?

This answer will first discuss your allegation of perjury.  Then, secondly, the answer will discuss possible civil remedies and suggestions for your divorce.

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Dear Carolyn,

Triad parent here, contemplating divorce, but I feel compelled to stay together for the children.  The children are ages ten and twelve.  However, the marriage is quite bad; we argue all the time.  We never do anything together, and sex—forget that.  I work, and my wife does not work.  Can you give me any insight into considerations for whether I should stay in the marriage for the children, or at least until they are in college?  I want to do what is best for the children.  I am miserable.

Miserable

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Jennifer A. Crissman, Attorney, Woodruff Family Law Group

            In Part 1, we discussed that proving Cohabitation in North Carolina is not an easy task. There have been multiple North Carolina Court of Appeals cases where the dependent spouse and new flame had been dating for years, were blending finances, were vacationing together, and living together as much as five days a week; yet the Court found there was no cohabitation. The most important thing to keep in mind when trying to prove cohabitation to the court is your evidence.

When the Court reviews the evidence of cohabitation, it will engage in a two-part test. If the objective evidence of cohabitation does not conflict with other evidence, the court does not have to consider the subjective intent of the dependent spouse and new romantic interest. However, if there is conflicting objective evidence, then the Court must look to the subjective intent of the dependent spouse and new romantic interest. Bird v. Bird, 363 N.C. 774, 688 S.E.2d 420 (2010).

Examples of objective evidence of cohabitation includes externally verifiable phenomena, such as bank statements in both parties’ names, joint lease agreements, joint utility bills, cell phone records and text messages showing communications between the parties, emails between the parties alleged to be cohabiting, photographs of the parties together, or investigative reports detailing the movements and actions of the parties alleged to be cohabiting.

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thumbnail_backbendOn June 8, Dance Legends from Russia, USA, Italy, South Africa, Denmark, and Azerbaijan will perform at the State Kremlin Palace, Moscow, Russia in “Stellar Duo.”

Carolyn Woodruff, known as the Dancing Divorce Attorney, will represent the USA for the second year in Moscow, Russia in the “Stellar Duo” with partner, Alosha Anatoliy (from Ukraine, now US citizen). The two have been dancing together since 2006 and are the reigning United States Pro-Am Show Dance Champions. The two have also won several titles for themselves in the last 10 years including; Gold Medalists at the 2016 United States Dancesport Championship, Fred Astaire National Dance Championship in both Smooth and Cabaret, Best of the Best in Gold Show dance at the Millennium Dancesport Championship, and were featured on Simon Fuller’s Ballroom Blitz, which played in over 10 countries.

“Alosha and I are so privileged to be representing the United States for the second time in Moscow. We understand what an honor it is to be included in “Stellar Duo” with all this world turmoil between the United States of America and Russia. We believe that Art and Dance will rise above the political unrest,” says Woodruff, owner of Woodruff Family Law Group, Greensboro, North Carolina. 

I feel very honored and excited to be part of this very special event and share the Mystery of Masquerade,” says Alosha Anatoliy, owner of Fred Astaire Greensboro.

Carolyn and Alosha’s beloved choreographer, Taliat Tarsinov, who is sought after worldwide, is the event’s Artistic Director.

“It is such a privilege to be the Artistic Director of “Stellar Duo” and to be able to bring the world’s best ballroom dance couples together for one exciting evening in Moscow at the beautiful Kremlin Palace,” says Tarsinov.

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Stapleton v. Comm’r, T.C. Memo. 2015-171, 2015 WL 5049758

Facts: A father and mother had two children. The parents were never married. No court was ever asked to decide custody, but the parents agreed that the father would have the children every Monday and Wednesday night and every other weekend. In 2011, the father had custody of the children for 176 days.

The father claimed the dependency exemption for both children on his 2011 tax return. The IRS disallowed the exemption, and the father appealed to the Tax Court.

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Hiramanek v. Comm’r, T.C. Memo. 2016-92, 2016 WL 2763870 (2016)

Facts: The husband prepared a joint tax return for tax year 2006 and asked the wife to sign it. She refused to sign without reading it, and he permitted her to take a quick glance at the return. She noticed that the return contained a $35,000 casualty loss deduction for a break-in to the couple’s car while they were on vacation in Hawaii. Believing the deduction overstated, she refused to sign. The husband threatened and physically abused her for several hours, and she finally made a scribble on the signature line. The husband’s physical abuse was consistent with other physical abuse which the wife endured during the marriage.

The next day, the husband presented the wife with a new report with the $35,000 deduction omitted. The wife, fearful of further abuse, signed the return.