Separation

Understanding the Importance of a Prenuptial Agreement in North Carolina

Published on: January 31, 2012 | On behalf of Arnold & Smith, PLLC

Though most people would agree that marriage is a big step, representing a major life change, very few people understand the magnitude of the decision both legally and financially. People forget that marriage is, after all, a contract entered into by two people and it entails many of the same pitfalls as any other contractual relationship.

One of the things that many people may not realize is that even if one spouse contributes disproportionately more assets or income to the marital partnership, all of the assets likely eventually become merged into one marital pie where the lesser contributing spouse is entitled to half. This means one spouse could possibly walk away with a disproportionately larger share of the assets than they contributed. When couples agree to marry they typically are agreeing to relinquish half of your accumulated assets, something most newlyweds seldom think about. Some couples, likely those who marry young, may not have any appreciable assets. So, it may not be such a concern for them. However, those who have accumulated assets should give careful consideration to the business aspect of their marriage.

People take a business-like approach to other major events with potentially important financial implications like buying a house or a car. Yet when it comes to marriage, rarely is research conducted or fine print examined. A prenuptial agreement is an obvious way to protect yourself and watch out for both parties’ financial wellbeing. However, many people dismiss the idea as either being a sign of lack of genuine affection or as something only used by the ultra-wealthy. Neither is true.

A recent poll by Harris Interactive showed that when asked nearly half of divorced people said they wish they had a prenup when they married. Forty-four percent of single adults say they would want a prenup and yet only about 5% of couples actually go through with it. Why the disconnect?

As Some States Slow Divorce, Others Kick It Into Gear

Published on: January 17, 2012 | On behalf of Arnold & Smith, PLLC

As we mentioned in a post last week (Some States Try to Slow Down Divorce), some states have made a move toward lengthening their divorce process in the name of looking out for the best interest of children. The Wall Street Journal reports that New Jersey is evidently not as concerned with such things. In fact, New Jersey is set to become the East Coast version of Vegas.

Legislation is currently sitting on New Jersey Governor Chris Christie’s desk which would turn this into a reality. The bill, if signed, would make it easier to get married in the state and would also expedite the process of getting a divorce.

The bill was passed by both houses of the New Jersey Legislature on Monday and would eliminate a mandatory 72-hour waiting period for a marriage or civil union license. The speed comes at a cost, however. The bill would see the cost of a marriage license rise to $60 from $28. Additionally, the bill would allow couples to annul a marriage within 30 days without the need to go to a court. Specific details on how the annulment process would function are still being hammered out. Currently, 29 states have no waiting period for a marriage license, but only two -Connecticut and Rhode Island – are in the Northeast.

The current rules in New Jersey require those who want an uncontested divorce to wait at least six months. The number is reduced to three months if the couple can demonstrate that the marriage is not working and that there has been fault.

The new bill has its fans and its detractors. Some believe it will bring more visitors to the state, increase revenue and be a generally positive change for New Jersey. Others say it cheapens the sanctity of marriage and will lead to increased family problems in the state.

The Benefits of Annulment in North Carolina

Published on: January 5, 2012 | On behalf of Arnold & Smith, PLLC

What’s the best way to avoid some of the time (and money) wasting fights that come along with divorce? Get an annulment instead. Unlike divorce, which acknowledges a marriage’s beginning and end, an annulment simply declares that the marriage never existed in the first place. “When a couple gets an annulment, it’s as if the marriage never existed to begin with,” says Kristin D. Hofheimer, a divorce attorney in Virginia Beach, Va.

Annulment can be great for your finances. The reason is that in an annulment, the courts do their best to restore the individuals to their original financial state prior to the marriage. So, what money and property you brought into the marriage is what you will walk away with, including any debt that came along with you. Anything that is joint, either assets or debts, are typically divided equally.

The problem is that qualifying for an annulment isn’t easy, and it’s not meant to be. In North Carolina, annulments are typically only allowed for the following narrow reasons:

1. Marriage between any two persons nearer in relationship than first cousins.
2. Marriage between double first cousins. Double first cousins occur when a set of brothers marries a set of sisters, or a brother and a sister marry another sister and brother, and they produce children. The children of these two marriages are double first cousins.

3. Marriage between a male person under 16 years of age and a female, with the exception of a court order as a result of a pregnancy when between the ages of 14 and 16.

4. Marriage between a female person under 16 years of age and a male, with the exception of a court order as a result of a pregnancy when between the ages of 14 and 16.

5. Marriage where either of the parties is physically impotent at the time of the marriage. Impotence must be permanent, incurable and medically diagnosed by a doctor.

6. Marriage between persons either of whom is, at the time of the marriage, incapable of contracting due to want of will or understanding is not automatically void
Couples who are in the process of getting an annulment and want to take action to protect their finances can typically approach joint debt in one of two ways:

1. Split the amount owed and each pay their share to take care of the debt.

2. One party can pay the entire debt and then sue the other party for half. If you’re trying to protect your credit, you may want to take care of the debt and let your ex reimburse you so you know an unpaid bill won’t end up bringing down your credit score, Hofheimer says.

More North Carolina Couples Divorce in January

Published on: December 29, 2011 | On behalf of Arnold & Smith, PLLC

Is there any truth to the belief that a new year brings new relationships? January is often referred to in family law circles as the “Divorce Month.” The Huffington Post reports that the combination of frantic holidays, family issues and financial stress can bring to light cracks in already strained marriages.

The January divorce label has been applied for a reason; according to statistics published by eDivorcePapers.com, January did indeed have the most legal breakups. One Maryland divorce lawyer confirms that “Divorce Month” really does exist, saying that “Some attorneys take the last two weeks of the year off to get ready for the rush. January really does see a lot of divorces.”

The single biggest day for filing a divorce remains in doubt, though some groups have attempted to identify a single “D-Day.” The Legal Services Commission claims that “the first Monday after the kids return to school” sees the most filings.

A founder of DivorcedWomenOnline.com, says that though filings are most popular in January, the search begins in December. Angry husbands and wives begin searching for information on divorce in the days immediately following the holidays. “I see a huge increase in pageviews and searches the day after Christmas. People start looking for information before the New Year starts, but they can’t do much until the attorneys are back in the office. January 12-16 seems to be the magic week for filings.”

There are many reasons for the New Year’s push, but one big reason is the kids. Often time couples have been struggling for months before the holidays. However, they attempt to put aside their issues to give their children a happy holiday season with an intact family. When January rolls around the magic is gone and often, so is the marriage.

Another big reason is year-end reflection. Unhappy spouses look at their lives and decide they need to make a change. Unhappy spouses take a look at their life more carefully following the rush of the holidays and decide they just cannot endure another year like that.

Taxes also impact a person’s decisions of when to file. Marital status is determined as of December 31 according to the IRS and if a couple wants to file returns jointly they must be married as of that day. Unhappy people facing financial stress may put off divorce until the New Year because they can’t afford to take the financial hit of filing separately.

Another spike occurs in July and August. The reason is that some parents file before the school year starts if they are thinking of relocating and enrolling the kids in a different school district. Summer routines are also important as most parents don’t want to put the children through a painful divorce while they’re at home with nothing to do. Once the school year starts parents are more apt to move forward with filing.

Marriage May Be Down, But Don’t Count It Out Yet

Published on: December 22, 2011 | On behalf of Arnold & Smith, PLLC

According to a recent article by the Associated Press, couples are becoming increasingly less likely to tie the knot. One recently single woman described what is the both the benefit and the burden of cohabitation: “You start to see how people handle confrontation, financial realities, challenges, the housework load. If we had been married we would have been divorced, or fully on our way.”

Heading into 2012, barely half of all adults in the United States are married, and the median age at the time of a first marriage has never been higher – a hair over 26-years-old for women and nearly 29 for men.

By way of comparison, in 1960, the number of adults married was dramatically higher, a full 72 percent. By the year 2000, that number had fallen to 57 percent and today is only slightly higher than half at 51 percent, according to the Pew Research Center.

Experts believe the percentage of married adults could dip below 50 percent for the first time in a matter of a few years as the number of younger couples and single parents continues to grow. From just 2009 to 2010 the number of new marriages in the U.S. fell steeply, by 5 percent. While this drop may be partially attributed to the economy, the larger trend still holds true, fewer people are walking down the aisle.

Though the decline in marriage rates is widespread, it is especially prevalent among young adults. Nearly three out of every five people between 18 and 29 were married in 1960. Today it’s one in five.

Another dramatic marriage statistic relates to education levels. According to Pew Research, nearly two-thirds of all adults with college degrees, or 64 percent, are married, compared with only 47 percent of those with high school degrees or less. In 1960, college grads and those who had not gone beyond high school were equally likely to be married.

Race also impacts the likelihood of tying the knot. Pew found that 55 percent of whites are married compared to 48 percent of Hispanics and only 31 percent of blacks.

Though marriage may be down, it’s too early to count it out. Stephanie Coontz, who wrote “Marriage: A History” and teaches family studies at Evergreen State University said that she thinks “marriage is perceived as a very desirable good but no longer a necessity.” Backing this thought up another Pew survey found that while nearly 40 percent of respondents said marriage is becoming obsolete, 61 percent of those who were not married would like to be someday.

Divorce Lawyers for Dads – Worthwhile or a Slick Marketing Campaign?

Published on: November 22, 2011 | On behalf of Arnold & Smith, PLLC

You have probably seen the “BIG D” divorce lawyer commercials on The Golf Channel or maybe on ESPN. They seem to run on channels that men would generally watch and they tug at the heartstrings of men going through, or potentially going through, a legal separation or divorce. The “BIG D” is omnipresent in the lives of the men portrayed in the commercial while a gentleman with a soft southern accent does a moving voiceover. The commercial makes reference to a dad’s perspective in child custody matters as well as illustrating how divorce can affect his financial position (apparently alluding to post separation support, alimony, child support or equitable distribution matters).

Alas, a “nationwide domestic law firm” from St. Louis, Missouri has set up shop in North Carolina. This law firm markets itself as a divorce law firm for men.

One question, obviously, is whether the “Divorce Lawyers for Dads” focus is an advantage or whether it is just a slick marketing campaign. One may also wonder if it is a good thing to hire a “nationwide domestic law firm” or whether it is better to have a lawyer who is local, with deep roots in the community. Obviously, you need to make these determinations for yourself. But, Fox News Charlotte has done this report:

iPhone Helps Catch Cheating Wife

Published on: October 18, 2011 | On behalf of Arnold & Smith, PLLC

How many creative iPhone or Droid apps have you seen lately? There are apps that do just about everything. There is a flashlight, a calculator, one that logs you into Ebay, one for Facebook. Heck, there are even some that can be used in the context of a family law case. There is the good old fashioned voice recorder, camera, video camera sort of stuff. There are others that will help calculate child support.

Yet, there are others that are a bit “different.” There is one that purports to allow one to make calls to a telephone and make it appear as though the call is coming from someone else (on caller ID). Another one purports to allow the user to send a text message to a telephone and make it appear to be from another cell phone. Obviously, the implications of this sort of ability on divorce litigation and evidentiary matters might be troubling.

Well, when Apple released its most recent iPhone (iPhone 4s) and operating system (iOS5) it included a feature which utilizes the GPS functionality of the iPhone. This application is called “Find my Friends.” As you might imagine, it did not take long before a suspicious spouse used this application to keep a watchful eye on the other spouse.

Although this account has not yet been verified, according to an article on ABC News/Yahoo! (Your Cheating Heart: iPhone App Finds Wife With Another Man). According to this blog post, the industrious (and suspicious) husband got a new iPhone for his wife.

Date of Separation Appeal Dismissed as Interlocutory

Published on: October 11, 2011 | On behalf of Arnold & Smith, PLLC

The North Carolina Court of Appeals recently dismissed an appeal as interlocutory. The issue on appeal was the parties’ date of separation. When suit was filed, the husband alleged that the parties’ date of separation was in 1995. The wife, of course, answered and counterclaimed. The interesting part is that the wife alleged that the date of separation was in 2007 – some 12 years later.
The trial court conducted an evidentiary hearing for the sole purpose of determining the parties’ date of separation. After taking evidence and considering the arguments of counsel, the trial court determined that the parties’ actual date of separation was in May of 2006. This happened to be a date that neither husband nor wife alleged to have been the parties’ date of separation.

The husband appealed the trial court’s determination of the parties’ date of separation. On appeal, Husband acknowledged that the appeal was interlocutory (obviously the parties’ respective claims for post separation support, alimony and equitable distribution had not yet been decided). Husband, however, argued that the determination of the parties’ date of separation affects a substantial right because it plays a vital role in the determination of the parties’ Chapter 50 claims.

Avoid Divorce by Spending Time Apart?

Published on: September 22, 2011 | On behalf of Arnold & Smith, PLLC

According to a recent article on Yahoo, absence truly can make the heart grow fonder. The article examines a journalist who has been married for 23 years. According to her, the key to their long marriage and avoiding divorce is simply taking separate summer vacations each year. She would go to work as a camp counselor while her husband would work on projects at home. After she spends seven weeks away, their marriage seems stronger than ever.

Depending on the couple, the time away can vary widely. Not every spouse is comfortable spending seven weeks away each summer. For some couples it can be as simple as a weekend getaway with the guys or girls. For other couples, it may be a new hobby which requires a bit of time away from the other spouse. The author notes that the key is having separate adventures and pursuits from your spouse, rather than separate lives.

The author goes on to note that, true to the adage, missing your spouse can be a powerful aphrodisiac – absence makes the heart grow fonder.

Some couples take it much further, going so far as to divide their time between two separate homes. In 2006, there were 3.8 million married couples who were considered “living apart together.” This can work if two people have different desires for their day to day lives. For example, if a couple does not see eye to eye about how to keep the house, decorate and the like then it may be easier for them to have separate primary residences.

A bit of distance can improve self reliance and spouses will sometimes fill roles which are traditionally male or female. The challenge is, though, that too much self reliance can make the notion of divorce more appealing and more palatable.

Set Aside Separation Agreement Appeal Dismissed as Interlocutory

Published on: September 15, 2011 | On behalf of Arnold & Smith, PLLC

The North Carolina Court of Appeals dismissed an appeal as interlocutory. In this case, the Wife filed an action to set aside a Separation Agreement and establish the parties’ date of separation. The Wife also raised claims for equitable distribution, post separation support and alimony. At hearing the trial Court set aside the Separation Agreement and Property Settlement.

The Husband moved pursuant to North Carolina Rules of Civil Procedure Rule 54(b) that the trial Court certify the Order as immediately appealable. The trial Court also noted in its Order that the Order affected a substantial right of Husband. It seems that the trial Court tried to set the matter up for immediate appeal by all means available to it.

The North Carolina Court of Appeals dismissed the appeal as interlocutory by finding that the matter did not satisfy the second prong of North Carolina Rules of Civil Procedure Rule 54(b), which requires that the ruling be final with respect to one, but not all, of the matters pending in the case. The Court found it compelling that none of the other pending claims in the case could be determined without first determining the request to set aside the Separation Agreement.