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We started our divorce recovery tip series to provide advice in an easily-digestible format, but sometimes we can’t say everything we want to in one image. This blog series will expand on our tips and provide some extra insight into the divorce recovery process.

Tip #1 – Take time each week to pamper yourself.

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After divorce, we don’t often feel great about ourselves. We may wonder why it happened, what we did wrong, or what’s wrong with us. And while we may know that there’s nothing wrong with us, knowing that doesn’t always make us feel better.

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By Carolyn J. Woodruff, North Carolina Family Law Specialist

In re Lawson, 570 B.R. 563 (Bankr. N.D. Ohio 2017)

Facts: A husband and wife filed divorce proceedings in Ohio. Among the marital assets was the husband’s defined contribution retirement plan. The parties read into the record in the Ohio action an agreement that awarded the wife 50% of the plan account. The court approved the agreement. No DRO was immediately entered.

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By Carolyn J. Woodruff, North Carolina Family Law Specialist

In re Jeffers, No. 14-52328,    B.R., 2017 WL 2838104 (Bankr. N.D. Ohio June 30, 2017)

Facts: A husband and wife divorced in Ohio. The divorce decree awarded the wife an interest in the husband’s retirement benefits.

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Garcia-Tatupu  v.  Bert  Bell/Peter  Rozelle  NFL  Player  Ret.  Plan,  No.  CV 16-11131-DPW,     F. Supp. 3d   , 2017 WL 1398645 (D. Mass. Apr. 18, 2017)

Facts: The husband, a former NFL football player, was divorced from his wife in Massachusetts in 1997. No DRO was entered at the time. The husband died in 2010; he had not remarried. In 2012, the Massachusetts court issued a DRO, nunc pro tunc back to 1997.

The wife requested benefits from the plan under the DRO, the plan denied benefits, and the wife sued the plan. The plan filed a motion to dismiss.

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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.

A less traditional but also permissible option is the separate interest approach. With the separate interest approach, the nonowning spouse is awarded a separate and distinct set of benefits under the plan, with a value equal to a stated percentage of the actuarial value of the owning spouse’s benefits. (Actuarial value is the total future benefits expected, times the chance of death before receiving them.) The owning spouse’s benefits are then reduced proportionately.

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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.

Upon retirement, the husband elected to receive retirement benefits without survivor benefits, thereby violating this provision. The wife sought to enforce the decree by sending a copy to the plan. The plan refused to comply with the decree, finding that the decree did not meet the requirements for 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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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 →