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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.

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Benjamin N. Neece, Attorney, Woodruff Family Law Group

A special trait that all attorneys must possess is the ability to guide their clients through the litigation process. Rule 7 is one of the most basic, yet vitally important rules in structuring a case and proceeding through various twists and turns that are encountered along the path to favorable outcomes. Rule 7 is technical and provides guidelines that in some instances, even the Court does not have the power to manipulate. North Carolina Attorneys involved in all areas of litigation are strongly advised to take special heed regarding Rule 7 as failure to do so can bog down your case proceedings.

When meeting with your attorney, you will often hear common phrases such as “complaints,” “answers,” “replies,” etc. This very well may be one of the few times that common English meaning of words are directly applicable to the words your attorney is saying. Legal lingo can be confusing, but rest assured, a complaint consists of your actual complaint (aka how you have been harmed/wronged). Rule 7 defines these documents as “Pleadings” and there are six “required” pleadings that you may encounter during the litigation process. Rule 7 flexes its proverbial muscles here as the Court does not have the power to waive or enforce their filing, nor can the court create “new” pleadings. Each of the “required” pleadings are not necessarily required in all instances of litigation, but luckily the process progresses in sequential order, meaning –  one must be filed before another becomes required. Despite the seemingly straightforward nature of Rule 7, having an attorney handy is necessary in the drafting, execution, and submission of these documents because a failure to properly file a required pleading can be very harmful to your case.

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By: Leesa M. Poag, Attorney, Woodruff Family Law Group

 

Whether you are the Plaintiff filing a lawsuit or the Defendant being served with one, one of the most important things for a family law attorney in Greensboro and across the state to keep in mind are deadlines imposed by rules and statutes in North Carolina.  Rule 6 of the North Carolina Rules of Civil Procedure sets the guidelines as to how we compute time in North Carolina.

In computing any period of time in a lawsuit, the day of the act that begins the running of the time period is not included.  For example, when you are served a summons and complaint for divorce, you have thirty days to respond.  If you are served on May 1st, the thirty days would not start until May 2nd, the day following the act that started the running of the time period.

The last day of a time period is typically included. However, if it is a Saturday, Sunday, or a legal holiday when the Courthouse is closed, it is not.  So if your period of time to respond to a complaint is set to expire on July 4th, you don’t have to leave your cookout to file your answer.  The period to answer would be extended until July 5th, or the next business day when the Courthouse is open.

If you need more time to respond to a pleading or other paper that you have been served, you can request that the Court grant an extension to your deadline. This is typically accomplished by filing a Motion for Extension of Time with the Clerk of Court, and it can be done at any time before the deadline expires. This allows the deadline to be extended for thirty additional days.  These extensions are typically granted freely as long as they are timely filed with the Clerk of Court. Continue reading →

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Leesa M. Poag, Attorney, Woodruff Family Law Group

When a couple decides to separate and end their marriage, there are often other issues that must be resolved along with the divorce.  Family law attorneys in North Carolina often include claims for issues such as custody of the children and division of the marital property along with the divorce claim.  But an issue that has recently become more and more prevalent is one that falls somewhere between the custody and property division issues – when two people separate, which spouse gets to keep the family pet?

While the question of who will keep the pets is a common one in many cases, it has proven to be especially contentious in cases where a couple has no children, or the children are grown up and are no longer in the home.  One can understand how this situation can lead to a party having a stronger than normal bond with the pet, sometimes even treating the pet as their child.  (And hey, you don’t have to pay to send Rover to college!)

Traditionally, courts have viewed pets as personal property of the parties.  The typical approach to dividing personal property is a three step process which includes first classifying the property (either separate or marital), next, valuing the property as of the date of the parties’ separation, and finally making a distribution of the property between the parties.  While this approach might be simple when it comes to your sofa, it is proving to be a much more difficult question when it comes to your Schnauzer.  How does one place a value on a pet?  Should the court value your family dog at the amount that you paid for him, or should the sentimental value that the dog now has as a member of the family be considered?  And if the parties can’t agree as to who should keep the pet, how does a judge, who is unfamiliar with the parties or the animal, make such a determination?

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By: Jennifer A. Crissman, Woodruff Family Law Group

If you are going through a separation and divorce in North Carolina, one topic that always arises is the dreaded “A” word: Alimony. No one wants to be responsible for supporting their soon to be ex-spouse, and if they are going to be responsible for that support, they want to know what can make the obligation (i.e. nightmare) end.

In North Carolina, several circumstances will terminate the alimony payments: the death of the supporting spouse, the death of the dependent spouse, or the remarriage or cohabitation of the dependent spouse. The death of either party or the remarriage of the dependent spouse are pretty clear in their definitions, but there is some confusion about what exactly is considered cohabitation. Although statute defines cohabitation, the facts and circumstances of each case determine whether cohabitation has truly occurred.

A discussion of the elements of cohabitation follows, but at the outset, it is important to understand the reasoning of why cohabitation terminates Alimony. It may seem that it is to punish the dependent spouse or to keep the dependent spouse from having a dating life after their marriage ends, but this is not the case. The North Carolina Court of Appeals in Setzler v. Setzler, 781 SE2d 64 (NC App., 2015) explained that terminating alimony due to cohabitation is not punishment of the dependent spouse, but rather is a financial consideration. The Court reasoned that if the dependent spouse has entered into a serious relationship that implicates their finances, they could be avoiding marriage in bad faith to keep the alimony coming. With that in mind, let us turn to the elements of cohabitation.

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State Farm Life & Assurance Co. v. Goecks, F. Supp. 3d       , 2016 WL 1715205 (W.D. Wis. 2016)

Facts: A Wisconsin divorce decree provided:

The respondent [Gary] shall be required to maintain the petitioner [Sharon] as the primary, irrevocable beneficiary on one third of the face value of all his life insurance policies in effect as of the date of the final hearing or in the amount of Seventy Five Thousand Dollars ($75,000) of the face value of said policies, whichever sum is greater. Respondent shall provide the petitioner proof of said insurance and beneficiary designations. Petitioner shall pay the respondent the sum of Twenty Five Dollars ($25.00) per month toward the cost of said insurance. The parties further agree to designate the children as primary beneficiaries of all life insurance policies except as set forth above.  2016 WL 1715205, at *1. The divorce decree was not submitted to the employer for qualification as a QDRO.

The husband initially complied with the above provision, but later changed the beneficiary on some of his life insurance to his new wife. Upon his death, the insurers paid some of the benefits to the new wife, and interpleaded the remainder. Both wives asserted competing claims to the proceeds.

Of the various insurance policies at issue, one was an employer-provided policy regulated by ERISA.

Issue: Who is entitled to the proceeds from the employer-provided policy?

Answer to Issue: The husband’s wife at the time of his death.

Summary of Rationale: The court first held that the husband had breached the contract, rejecting a rather weak state law argument that the agreement only required the husband to name his former wife and children as a beneficiary of the insurance, and not as the exclusive beneficiary.

The employer-provided life insurance policy was part of a benefit plan, and it was therefore subject to ERISA. Benefits regulated by ERISA can be transferred only under terms of a QDRO. No QDRO was ever submitted. Thus, federal law preempted state law and barred enforcement of the decree with regard to the ERISA- regulated policy.

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Benjamin N. Neece, Attorney, Woodruff Family Law Group

               In 2017, communities exist both in the physical and virtual world. Whether you call a metropolis like Greensboro, or a small town such as Asheboro, home, there exist reasonable limits to the extent you will interact with certain individuals, the peer groups you will associate with, and how information will be transmitted. In the virtual world, those limitations are effectively eliminated and with that, an increased risk when it comes to revealing what would otherwise remain personal information. It is important for clients to understand the dangers that exist in regards to their cases when maintaining an active social media presence.

A divorce is probably one of the most difficult and emotional experiences may experience. There will be times when emotions may get the best of an individual, and there seems to be no way to express yourself and attain the peace that you seek, and often individuals may resort to releasing their emotions over social media. Whatever the reason, using this medium to obtain peace of mind during this time can be very damaging to your case and reduce your chance of success at the conclusion of the process. A common theme amongst social media outbursts results in revealing too much information.

Revealing information may be intentional or unintentional, which is why it is very important to make sure you are consciously thinking about how the information you release is perceived by not only a casual bystander but by your estranged spouse and their legal counsel. People are attracted to drama, and if you are the source, then it can lead to more eyes beholding what you have released which lead to a wider dissemination of this information. Additionally, what you may think is harmless may be easily manipulated by a trained professional to paint a picture you never intended to portray. A great way to avoid this risk is to limit the amount of information you put out there; controlling the narrative is an essential part of any legal proceeding, especially in divorce.

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