Charlotte Divorce Lawyer Blog

Charlotteans Push for Changes in Child Custody Laws

Published on: July 8, 2010 | On behalf of Arnold & Smith, PLLC

Many Charlotte fathers – and a few mothers – are advocating for shared parenting time after couples divorce. A local group called Kids Need 2 Parents (KN2P) held a rally at Marshall Park on June 12 in an attempt to make “shared parenting” the presumed standard in custody law.

Although the current legal standard in child custody decisions is whatever arraignment is found to be “in the child’s best interest,” the President of KN2P, Sheila Peltzer, insists that the reality of custody battles is that the mother wins custody 85% of the time. Under KN2P’s proposed plan for shared custody, each child would start out splitting his or her time 50/50 between parents.

Members of KN2P believe that the Tender Years Doctrine, a common law theory that presumed that children of a young age are better suited to live with their mothers rather than fathers, is an unspoken bias in the law that remains today. They claim that children’s right to equal access to both parents is “the civil rights fight of this century.”

No Fault Divorce in Charlotte, North Carolina

Published on: July 5, 2010 | On behalf of Arnold & Smith, PLLC

Divorce comes in many varieties, including “no fault.” Including North Carolina, almost every state in the nation permits no-fault divorce. California was the first state in the country to pass no-fault divorce laws in 1969, and many states followed suit quickly. Only one state is still currently an exception: New York, which forces one side to prove that the other was at fault before the couple may obtain a divorce. However, New York’s state senate recently approved a bill that would permit no-fault divorce in the state and would allow couples to cite irreconcilable differences as grounds for the termination of a marriage. The state assembly should vote on the change within the next few weeks.

No-fault divorce is a divorce in which neither party must prove wrongdoing by the other in order to obtain a divorce decree. States that allow no-fault divorce permit a judge to grant a divorce by the petition of either party. In North Carolina, a husband and wife must be separated for at least one year before they may obtain a Judgment of Absolute Divorce.

Because New York is the only state without no-fault divorce laws currently, many lawyers note that couples in failing marriages are often forced to essentially lie to a judge in order to prove the other was at fault by one of three standards: adultery, abandonment, or cruel and inhuman treatment. Under New York law, only if both parties notarize a separation agreement and live separately for one year, can a judge grant a divorce. The proposed change could be most significant for the state’s many wealthy residents, who would be able to focus on the division of their assets rather than manufacturing reasons for their own divorce.

To Avoid Divorce, Charlotte’s Young Adults Delaying Marriage

Published on: July 1, 2010 | On behalf of Arnold & Smith, PLLC

According to a recent article by USA Today, today’s couples are delaying tying the knot longer than ever. In the post-World War II era, most couples married in their early 20s. Now, the average age for a first marriage is 28 for men and 26 for women, according to the U.S. Census Bureau. However, this delay is being viewed as very positive by marriage experts, who report that the combination of a certain maturity level and the ability to work out problems before committing may help new couples avoid the marital mistakes of their parents’ generation.

There are many reasons why experts say today’s young adults are waiting to make their relationships more official. They are gaining more education, which delays financial independence and increases money and stability concerns. Two-thirds of young couples are also living together before marriage, making sex before marriage much more widespread. Additionally, today’s young adults are more worried about divorce, as they have watched the national divorce rate skyrocket in their lifetimes.

Regardless, most young people do still expect to get married and believe that they will not face divorce. A survey of 2,300 high school seniors conducted by the University of Michigan in 2008 revealed that 80% of students say they will marry and believe they will stayed married to the same person for life. Only 4% of students believed they would not marry, and the final 16% said they were not sure.

Medical Marijuana Can Cost Parents in Child Custody Disputes

Published on: June 29, 2010 | On behalf of Arnold & Smith, PLLC

Fourteen of our fifty states currently approve the use of marijuana for medical purposes in some form. However, because the use of marijuana is still illegal under federal law, its role in child custody disputes has become a subject of great debate in recent years. Although medical marijuana laws can protect patients from criminal charges, they typically do not prevent judges and guardians ad litem from considering a parent’s use of marijuana as a factor in custody decisions.

Most often, the judicial system will side with parents who seek to keep their children away from marijuana. With some other painkiller medications, judges can require tests to establish how much of a drug a patient has in his system at any given time; however, because treatment providers cannot prescribe specific dosages of marijuana without violating federal law, it is currently unclear what constitutes an “appropriate” level of marijuana in a patient’s system.

Medical marijuana activists in several states, including Washington, California, and Colorado, state that they have been getting more inquiries recently from patients involved in custody disputes, as the number of patients using marijuana for medical purposes increases. According to the Marijuana Policy Project, based in Washington, D.C., only two states with medical marijuana laws specify that patients will not lose custody or visitation rights, unless the patient’s use of marijuana endangers the child or is contrary to the child’s best interests.

Charlotte Dads Feeling the Same Pressure as Moms when it Comes to Family Obligations

Published on: June 25, 2010 | On behalf of Arnold & Smith, PLLC

This year, Father’s Day marked a new milestone for fathers across the country: they are becoming just as stressed as mothers. Last week, Boston College released a study called “The New Dad,” which suggested that new fathers are facing a subtle bias in the workplace that fails to recognize their new family responsibilities and obligations. This workplace bias assumes that mothers, rather than fathers, will be most affected by the addition of children to the family.

However, this research highlights the new challenges facing fathers: they must navigate a workplace that is typically reluctant to give them time off for family reasons. Several studies show that men, compared with their female colleagues, are less likely to take advantage of benefits like flexible schedules and family leave. The Boston College study found that when men needed to take their children to the doctor or pick them up from daycare, they tended to do so in a stealthy fashion rather than ask for a more flexible work arrangement.

Thus, fathers are now facing a social dilemma that is more often faced by mothers – finding the balance between being a good parent and a good worker. Fathers also seem more unhappy than mothers with the balancing act: In dual-income families, 59 percent of fathers report some level of “work-life conflict,” compared with about 45 percent of women, according to a 2008 report from The Families and Work Institute in New York.

Child Support and Post Separation Support Obligations Not Affected by Religious Beliefs

Published on: June 22, 2010 | On behalf of Arnold & Smith, PLLC

Recently, in the case of Shippen v. Shippen, the North Carolina Court of Appeals upheld a civil contempt finding against a husband who failed to pay child support and post-separation support to his ex-wife.

Shortly after the child support payments were ordered, John Lee Shippen joined the Twelve Tribes of Israel, a religious community that prohibits its members from earning outside income or owning personal assets. Instead, the sect’s members farm and provide services to one another in exchange for food and housing.

The court found that Mr. Shippen’s failure to make payments was “willful” for the purposes of the contempt order because he had the mental and physical ability to comply with the order. Mr. Shippen alleged that he acted in good faith based on his sincerely-held religious beliefs that prevented him from earning income. The court concluded that the fact that the defendant’s religious beliefs may be sincerely held is irrelevant to his obligation to pay alimony and child support.

Marriage, Divorce and Immigration

Published on: June 18, 2010 | On behalf of Arnold & Smith, PLLC

In Manhattan, the home of federal immigration headquarters, the future of many couples depends upon whether they can prove to the government that they did not marry solely to acquire a green card for one spouse. If a couple can successfully pass their interviews with the United States Citizenship and Immigration Services, the foreign spouse will become eligible for a green card; however, the actual receipt of a green card requires a separate application and security clearance.

According to an agency worksheet, red flags for immigration interviewers include: unusual cultural differences, a large age discrepancy between spouses, an unusual number of children, and a U.S. citizen spouse with little means. Interviewers also seek evidence of a legitimate marriage, such as the commingling of assets and other joint documentation, and a mental and emotional connection as the result of shared life experiences.

The actual number of green card petitions denied on the basis of fraud is quite small: only 506 of the 241,154 petitions filed by citizens last year were denied. The criminal penalties for perpetrating a marriage fraud are up to five years in prison and a $250,000 fine.

Tough Child Custody Decisions: What Happens to the Children?

Published on: June 15, 2010 | On behalf of Arnold & Smith, PLLC

A judge in Charlotte will soon have to decide the fate of two siblings who recently witnessed their father murder the rest of their family in their home. Charlotte-Mecklenburg Police report that the father of the children, Kenny Chapman, suffocated his wife and their 1-year-old daughter, then stabbed his wife’s daughter from a previous relationship. Chapman’s surviving 11-year-old daughter claims that he spared her and her 2-year-old brother because they were his first-born of each sex, and therefore they were special. The surviving children lived in the home for two weeks after the murders, and the daughter did not contact any relatives or act distraught, in an effort to avoid the same fate at her father’s hands.

The two children had the same father, but different mothers, which is complicating their case. The paternal grandparents want to be awarded custody of both children, but the maternal grandmother only wants custody of the boy, as she believes that she has a significant connection to him, and she is of no relation to the girl. Due to everything the children have endured together, the paternal grandparents believe that the children belong together. If the children are separated, the grandparents hope that arrangements can be made for them to see one another on a regular basis.

Divorce Attorneys Becoming Facebook Sleuths

Published on: June 11, 2010 | On behalf of Arnold & Smith, PLLC

Before the age of the internet, divorce attorneys used subpoenas and private investigators to glean the truth from opposing parties. Now, with the advent of social networking sites, the first place many attorneys can find incriminating evidence is on Facebook. Social networking discovery skills have become critical for many divorce attorneys who seek to support certain aspects of their cases. Incriminating information gleaned from social networking sites can sway the outcome of alimony disputes and child custody battles, particularly if the information discredits the party in the eyes of the presiding judge.

Eighty percent of attorneys surveyed by the American Academy of Matrimonial Lawyers reported a rise in the number of cases litigated that relied on social media over the past five years. Because Facebook boasts over 400 million users, most parties to litigation are bound to have created social networking accounts at some point in time. However, last week Facebook announced a tightening of users’ privacy settings in response to many user complaints.

National Digital Forensics, Inc., a North Carolina company that mines online media sites for information, reports that requests for social media searches from divorce lawyers have surged recently. The company’s senior investigator estimates that about half the social media cases they investigate expose some form of adultery.

Divorce Looms Ahead for Long-Term Married Couples

Published on: June 8, 2010 | On behalf of Arnold & Smith, PLLC

Although the recent announcement by Al and Tipper Gore that they are separating after 40 years of marriage has shocked the country, a recent CNN article indicates that more long-term relationships in this decade are heading toward divorce than ever before. Break-ups between long-term married couples are still far rarer than between newlyweds, but factors such as longer lifespans and a growing acceptance of divorce are accelerating the divorce rate among older couples.

According to the 2004 U.S. Census Bureau data, most first-time divorces occur around the 8th year of marriage. Experts say there are three “divorce-prone” points in time that will either make or break a marriage. The first is after the initial two years of marriage, when the couple has passed the “honeymoon period.” The second is around the five to seven year mark, when children are typically born. The final point is when the children leave home for college and the couple becomes empty-nesters with fewer ties to one another.

Couples like the Gores who have successfully navigated their marriage past all of these divorce-prone points often cause the greatest shockwaves when announcing a separation or divorce.