North Carolina Divorce Lawyers Blog

Articles Posted in ClientVille

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 By Carolyn Woodruff, North Carolina Family Law Specialist, JD, CPA, CVA
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In North Carolina, should your parenting agreement contain a provision regarding spanking? A hot topic, and sometimes explosive in a “spare the rod, and spoil the child” mentality. So what does the research say?

Finally, we may have the definitive answer regarding spanking. A new research study looks at the negative effects, both short-term and long-term of spanking children. The study can be found in the December 2018 issue of the magazine Pediatrics. The American Academy of Pediatrics now takes the position that spanking as a form of discipline is “not only completely counter-productive, it may be potentially damaging.” The study “found that spanking fails to improve negative behavior in young children. Instead, it leads to increased aggression in the long run. Corporal punishment may also affect normal brain development by elevating stress hormones.”

Spanking in North Carolina is legal, provided that the spanking does not leave any mark on the child.

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by Tina Ray, Legal Assistant
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Children aren’t children for long.  Tiny humans grow into little people with their own personalities and then into young adults with their own opinions and voice.  My daughter is 17 years old and a senior in high school.  I’ve watched her develop from a mini-me to a mature, independent young woman.  Earlier in her education, I would have to continuously ask her about her homework deadlines, school projects, and follow-up to make sure they were completed on time.  But, about two years ago, as a sophomore, she decided that it was time to buckle down and she didn’t need me to do that anymore.  College was looming in her future, and her GPA was important to her.  Her dad and I weren’t consulted about the classes that she needed to register for, and we did not need to know what type of homework or projects she had or when they were due.  McKenzie had matured overnight into a young adult.  I had my doubts, but she has managed to handle her classes and grades all by herself and maintain at least a 3.75 unweighted GPA with Honors and AP classes.   She decided that she wants to go to UNC-Greensboro to study nursing and will start in the fall.

Sports also used to be a big deal.  McKenzie excelled in soccer and softball but discovered travel volleyball at age 11, and our family embarked on a new adventure.  After playing for five years on a great team and traveling to many states to play indoor and sand volleyball, she decided she didn’t love it anymore.  Once again, she began looking forward and decided that she needed to focus on her future and concentrate on school and felt like volleyball would take too much of her time.  She was not interested in playing in college and felt that it was time to move on.  She started working part-time and thus began a new phase.

I write all of this because I want parents to know that kids grow up fast.  We blinked, and McKenzie has become her own person with her own hopes and dreams.  She doesn’t need us as much anymore.  I can remember feeling that overwhelming feeling of having young children, trying to work and maintain a home.  I would never “catch up” with everything that needed to be done.  Now, my youngest is almost grown and will be on her own soon enough.  She doesn’t need ME as much anymore.  Now, we’re more like friends sometimes than mother and daughter.

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by Any Setzer, Legal Assistant
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Getting divorced is hard enough.  BEING divorced and trying to move beyond the past is a whole different ball game.  Putting your trust in a new relationship is hard.  The thought of sitting through the cliché movie – dinner – coffee dates making idle chit chat and trying to get to know someone new can be daunting and repetitive.  Why not try something different?  Get out of Greensboro, North Carolina, get out of your comfort zone.  Traveling with someone is a great way to figure out how and if you are compatible with them.

Do I recommend a weekend trip to Miami with someone you’ve just met?  Of course not.  But “traveling” doesn’t have to mean spending hours trapped on a plane suffering the drools and dronings of random strangers.  You can get out of dodge right here.  There’s plenty of small towns around the Piedmont Triad to explore, and each one has its own distinct personality.   You can feel like you’re in another world but still be close to home (close enough to be rescued).

When my boyfriend and I began seeing each other, our first all-day excursion was to Graham, North Carolina.  It was one of the greatest days I can remember.  Afterward, I was hooked – on him and on Graham, NC.   Here are the highlights on what we saw, and what our experiences taught me about Mike:

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Can the court terminate a parent’s rights for willful abandonment of the children? Are there steps a parent estranged from his child can take to ensure this doesn’t happen? In a recent North Carolina appellate decision, the court considered willful abandonment and termination of parental rights. The case arose when the parents of two minor kids separated in 2010 just before the second child was born. The mother sued for custody, child support, and alimony. The father didn’t go to the custody proceedings, and the mother was given sole custody of the kids with reasonable visitation for the father who lived in a different state.

 

Several years after that, the mother sued to terminate the father’s parental rights based on abandonment. The lower court had a hearing and decided to terminate the father’s parental rights. It waited almost a year to enter its written order. However, the father appealed the written order.

 

On appeal, the father argued: (1) the lower court hadn’t entered the written order in a timely way, (2) there wasn’t enough evidence to show abandonment, and (3) termination of his parental rights wasn’t in the kids’ best interests.

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Can a lower court restrict your use of your passport in a North Carolina child custody order? In a recent North Carolina case, the defendant appealed from the court’s denial of his motion for reconsideration and relief from a 2015 child custody and support order. The defendant was a Poland-born American citizen. He and his wife had one minor child. They separated in 2013 and were divorced in a 2014 judgment.

The plaintiff filed a complaint asking for custody of their child, child support, alimony, post-separation support, equitable distribution and attorneys’ fees. After a hearing, the lower court awarded primary physical custody to the mother, with the parents getting joint legal custody. The lower court also established a visitation order and child support obligations. The lower court included a provision stating that the father couldn’t seek or be allowed to have a passport for the couple’s minor child.

The order gave the mother sole authority and decision-making with regard to any passport applications and in case a passport was issued to or for a child, the mother would have exclusive authority not only over the passport but any foreign travel. The father was not allowed to take the minor child out of the continental United States, except where the court provided written authority to do so. His passport had to be surrendered to the clerk and he had to apply to the court if he needed to travel with his passport.

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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, 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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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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