North Carolina Divorce Lawyers Blog

Articles Posted in ClientVille

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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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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.

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In a recent unpublished opinion of a North Carolina child support decision, a court considered a child support order involving a mother who was voluntarily unemployed. The father had appealed from the lower court’s child support order claiming that the lower court had made a mistake in concluding as a matter of law that only the defendant father owed the obligation to give support to the couple’s minor children and by failing to impute income to the mother who was voluntarily unemployed.

The couple had married in 2003 and divorced in 2015, after having two kids. They had equal physical custody. The mother had more income than the father did, but she didn’t pay support to the father. However, she remarried and got pregnant with another child. She’d been working full time as a registered nurse throughout her pregnancy in 2015, but after her daughter was born in 2015, she got a new job as a registered nurse and worked three shifts each week. When she became pregnant with twins, the pregnancy was considered high-risk and she stopped working. The babies were born five weeks premature and she didn’t go back to work as a nurse.

The county Child Support Enforcement Agency brought an action on behalf of the mother asking for child support from the father. The lower court deviated from the state child support guidelines and ordered the father to pay child support each month and provide health insurance coverage for the former couple’s two kids. He also had to pay arrears. The lower court found the mother had no income and no support obligation. It didn’t find the mother had acted in bad faith.

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Often people assume that if alimony is awarded, a husband will have to pay it to his ex-wife. However, based on consideration of certain statutory factors, alimony can also be awarded to an ex-husband and a wife may be required to pay it. In a recent North Carolina alimony appellate decision, a wife appealed from the court’s award of alimony to her husband. The couple had met online. The husband lived in India but moved to the U.S. to be with the wife. They married in India, but separated while living in the States. During the marriage, the wife allegedly subjected the husband to emotional and mental abuse.

The husband sued for divorce and alimony. In 2015, the appellate court had affirmed the lower court’s grant of divorce but reversed its award of alimony. In 2016, the lower court entered an order that awarded the husband alimony, among other things.

The wife appealed the award of alimony. She argued there was no subject matter jurisdiction for the alimony award, claiming that the lower court was required to recognize the annulment she got in India in 2011, one month after the husband sued for divorce. The appellate court explained that neither of the spouses was domiciled in India when she got the annulment, and so the lower court hadn’t made a mistake in not recognizing the annulment. In North Carolina, foreign divorces and annulments don’t need to be recognized where neither party had domicile in the jurisdiction that granted the annulment or divorce. It noted that domicile describes someone’s established and permanent home, and that even if someone has more than one residence, there is only one domicile. Domicile is changed by actual abandonment of some other domicile, intent to stay in a new place indefinitely or permanently or physical residence in a new place.

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A 529 Savings Plan allows parents to put aside money for their kids’ college expenses under tax-favorable conditions. How should trial courts classify the money in a 529 Savings Plan that is created and funded during marriage when a couple is getting a divorce?

In a recent North Carolina marital property appellate decision, a mother argued that contributions to a 529 Savings Plan were a gift to the children, rather than marital property to be divided. Alternatively she requested that the court carve 529 Savings Plans from the marital estate by creating a rule to treat the property differently from other marital assets.

The appellate court rejected her arguments, explaining that the beneficiaries of the plan didn’t have ownership of the funds, and the people participating in the plan could choose not to spend the money on education and after paying a penalty could spend it on something different. Accordingly, contributions aren’t gifts. The court also explained that it didn’t have the authority to create a way to carve 529 Savings Plans from the marital estate. It reasoned that the General Assembly was the governmental body with this authority, and that its role was to consider the purpose of marital funds to determine equitable distribution.

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