Charlotte Divorce Lawyer Blog

Legal Separation Lawyers in Charlotte, NC :: Legal Separations, Separation Agreements and Living Separate and Apart: Making Sense of all the ‘Separates’

Published on: August 9, 2012 | On behalf of Arnold & Smith, PLLC

You hear a lot about legal separation in North Carolina but most of what you hear may not be correct. For one thing, there is no such law describing a “legal separation.” You can file for divorce from bed and board which is essentially a fault based legal separation, but such motions are rarely granted and the process is seldom used. What most people are referring to when they talk about a separation is what is called a “separation agreement.”

A separation agreement is simply a contract between two people. The agreement must be voluntarily entered into by two individuals who are of sound mind and at least 18 at the time of signing. If any of these three requirements are not met the contract may not be enforceable.

Such agreements are meant to resolve such matters as property division, debts, custody and support when a married couple is ready to split. A common misunderstanding is that separation agreements are necessary precursors to divorce. A separation agreement does not serve as “proof” that you have been living separate and apart from your spouse for the requisite period of time nor does it make a divorce easier to obtain. It exists to help maintain a mutually agreed upon peace while a couple contemplates moving forward with divorce.

The next kind of “separate” we’ll be discussing is the requirement for divorce in North Carolina that the parties be physically separated for one year and a day. This means that you must live in separate homes for at least one year and a day to qualify for divorce in the state. Though many people refer to this as a formal “separation” there is no such legal distinction recognizing this.

Modification of Child Custody Lawyers in Charlotte, NC :: How does Child Custody Modification Work in North Carolina?

Published on: August 7, 2012 | On behalf of Arnold & Smith, PLLC

The process of dealing with a child custody modification depends on whether the original custody plan is part of a separation agreement or a court order. In case of the former, either parent can request for modification in custody in writing to which the other parent may or may not agree. When the other parent does not agree, the parent seeking custody modification can then take the matter to court.

If, however, child custody is part of a court order, the parent seeking modification needs to file a motion to modify the custody order with the court. It is possible even if the custody plan is part of a court order that the parents can reach an agreement on their own and then go to the judge for final approval. This is known as a consent order and is often the best approach if the parties are on good enough terms to communicate with one another.

North Carolina courts will consider modification of a child custody order only if the parent requesting the custody modification is able to prove a substantial and material change in circumstances. Only after the court has been satisfied that the change in circumstances is both substantial and material, will it then move on to consider what is in the best interest of the child. The reason for this is to prevent constant back and forth motions to change custody which would be destabilizing for the children. It also helps prevent the court from becoming overburdened with frequent and repetitive modification requests.

One such substantial and material change would be if the custodial parent is relocating to another state and the move will impact the child’s life. The court is then empowered to modify custody and visitation with a view towards the child’s best interest. Some courts switch custody from one parent to the other, although the increasingly common approach is to ask the parents to work out a plan under which both parents may continue to have significant contacts with their children.

Charlotte Divorce Lawyers :: Grounds for Divorce in North Carolina

Published on: August 2, 2012 | On behalf of Arnold & Smith, PLLC

There are only two grounds for divorce in North Carolina. They are discussed in North Carolina General Statute § 50-6. The state has only two grounds for divorce: 1) Separation for One Year; or 2) Incurable Insanity of One Spouse and Separation for Three Years. In North Carolina, the vast majority of marriages end due to the first basis: separation for one year.

Many states, including North Carolina, require a “cooling-off” period of separation for a specific length of time before no-fault divorce proceedings can take place. During this time, the couple is required to live apart from one another with the intent that the separation will become permanent. In North Carolina, after the couple has lived apart for the required year, the divorce is typically granted about 60 days after filing, and the decree is made final immediately.

Under state law, the one-year separation does not have to be according to mutual agreement; only one spouse is required to have the intent to stop cohabitating with the other. Under present law, isolated incidents of sexual intercourse do not stop the statutory one-year period from running, provided such incidents do not amount to a “resumption of marital relations.” The only proof required of this separation is the testimony of the plaintiff; no written statements or affidavits are necessary. As is the case with both grounds for divorce, one of you must have been a resident of North Carolina for at least six months.
The other way to get a divorce in North Carolina is to meet the grounds of incurable insanity. To do this, the spouses are required to have lived apart for three years or more because of the condition of insanity. The condition of insanity must be proven by the testimony of medical or psychiatric experts. Given the work required to prove the condition, the insanity basis as grounds for divorce is not used very often.

Charlotte Military Divorce Lawyers :: The Complexities of Military Divorce in North Carolina

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

Deciding how to split up a couple’s accumulated assets is a challenging but necessary task before any divorce can be finalized. This already tough job can be made even more complicated if one or both spouses is an active duty or retired member of the military. In such situations, one of the couple’s biggest assets is almost always the military spouse’s pension. This pension, and all the rules that come along with it, make military divorces generally more complex than those of nonmilitary families.

Military pensions are often worth significant amounts of money and, as an added bonus, are guaranteed for the rest of the military spouse’s life. The Wall Street Journal says that a lieutenant colonel in the Air Force who has put in 30 years of service will receive a pension worth $72,288 a year. The pensions are not paid in lump sums, but if they were, the present value of the pension would easily exceed $1 million. What makes this even more valuable is that there is no minimum retirement age. It’s in the realm of possibility that someone who enlisted at 18 could retire at 38 and go on to receive a pension, including yearly cost of living increases, for decades into the future.

The state in which a spouse files the divorce petition can be one challenging aspect of the division of a military retirement pension. This can be tricky because, while a service member may be stationed at a base in North Carolina, they may have a permanent residence in another state. It’s also possible that an estranged nonmilitary spouse or ex-spouse could reside in yet another third state. Depending on the state, the nonmilitary spouse could lose out on the retirement benefits if certain forms are not filled out correctly.

The length of the marriage is another factor that can contribute to the difficulty of dividing up the military retirement pension. When the marriage overlaps the military spouse’s service period by 10 or more years, the nonmilitary spouse will receive benefit payments directly from the government. If the marriage lasted fewer than 10 years of the service period, then the government will not enforce a court order from the nonmilitary spouse for a share of the retirement pension. In such cases, if the military spouse does not agree to provide a share of the retirement benefits directly to the nonmilitary spouse, then the matter will have to be settled in a divorce court in the appropriate state.

The Impact of Divorce on Caregiving in North Carolina

Published on: July 19, 2012 | On behalf of Arnold & Smith, PLLC

A reality that many families are only beginning to face is the effect that divorce can have later in life on caregiving, especially for adult children and stepchildren. Taking care of older parents is hard enough; the only thing harder is having multiple sets of parents to watch after. This difficulty is compounded by the impact of a chorus of people seeking to give their two cents, including spouses, siblings, stepchildren, half siblings, and stepsiblings.

Beyond the problems faced by those who are the children of divorce, worries loom for middle-aged people in the midst of a divorce. They too will require help in the future and the question of who will be around to do it is on lots of people’s minds. The problem isn’t a small one as data indicates that today one out of every three baby boomers is single, many due to divorce.

As we discussed last week (“Gray Divorces” Present Unique Challenges), the “gray divorce” trend is on the rise. They will all need help but who is going to step in? It’s common knowledge (and backed up by studies) that women tend to have stronger support systems in place than men. This means that women will likely be more secure in their old age with a larger network of people ready to care for them. Sociologists and others worry about how men, in particular, will survive without a wife around to help out in their old age.

One sociologist pointed out that because women more often keep the kids following a divorce (especially thirty years ago, the peak time for divorce for those entering old age today) the children may have bonded more with mom than with dad. Absent fathers may not have any children standing by to take responsibility if something happens.

Other problems facing older divorcees include the impact of stepchildren. Will stepchildren feel much allegiance to supporting their parent’s former spouse, one with whom they share no DNA? How about when parents remarry with adult children, some of whom have families of their own? Will those kids feel any kinship with the new step mom or dad and thus feel compelled to sacrifice for their care?

Victim of Adultery Gets Creative to Sell Home

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

A mother of two who was the victim of infidelity after 10 years of marriage is trying to make lemonade out of life’s lemons. After her husband left her for a 22-year-old yoga instructor, Elle Zober channeled her frustration into helping sell the family home.

She started by making a sign and placing it in the front yard which reads, “Husband Left Us For 22-Year-Old – House For Sale By Owner (Adulterers Need Not Apply).” Zober says her husband knows about the sales pitch and even chipped in to pay for some of the signs promoting the sale.

Zober also launched a website about the sale, http://www.greatfamilyhome.com/, where she tells her story and offers photos of the property. On the website she says:

“We did everything right. Married ten years. Two kids: one perfect boy, one bouncy, perfect baby girl. We had almost no debt outside of our cars and we bought a house…. but, as with many marriages, our story ends in divorce. I’m not sure how this all happened… but, all I can is that as soon as your husband/wife starts using new texts languages like :/, or starts talking to you like a college kid…. check your phone bill – you’re probably going to be in for a surprise. For me that surprise came in the form of a 22 year old college student who likes yoga… and, other people’s husbands.”

Zober says they have not shown the signs to her children but have no problem airing their dirty laundry in public as long as the house sells. She said both she and her husband want to avoid having the house go into foreclosure, a common problem these days when a divorced family suddenly must support two households on the same amount of money as when there was only one. She’s not just selling the house, Zober has also decided to capitalize on the media attention surrounding her website and is even selling merchandise, including a $5 refrigerator magnet.

Equitable Distribution – The Scoop on Joint Accounts

Published on: July 12, 2012 | On behalf of Arnold & Smith, PLLC

It happens all the time, people sign on the dotted line creating joint accounts. Credit cards, bank accounts, car leases, etc. Many of us do it without even thinking. What we may not understand is just how important that decision is to our financial future and how hard a decision it can be to unwind. The following are some important things to know before opening a joint account.

First, joint credit can mean many different things. The first kind of common account is a one that is truly split. This means that you are both partners on the account and fully liable for the loan. It’s important to realize that if your partner flakes out you are liable for 100% of the debt, not just 50%.

Another variety is an account where you are listed as an authorized user. In such accounts you are allowed to use the card but have little or no responsibility for ever repaying the debt. If the debtor defaults it is possible that some lenders will attempt to collect from you, especially for the purchases you made.

A final variety is a co-signer situation. In these cases you are signing on to be responsible for the entire amount of the debt even though the credit has been issued in another person’s name and you are not permitted to use it. If the borrower messes up, this bad behavior can be reflected on your credit history as you signed up to be on the hook.

Second, ending a relationship could potentially lower your credit score by reducing your income level. If your income drops and creditors pull back your credit limits there could be a real impact to your credit situation. One way to avoid this is to keep using some of your individual accounts while in a relationships.

“Gray Divorces” Present Unique Challenges

Published on: July 10, 2012 | On behalf of Arnold & Smith, PLLC

We’ve said it before, but the trend known as “gray divorce” appears to be picking up steam. The numbers of senior divorces in the country continue to grow and with the baby boomers aging the amount will likely rise even faster.

Susan L. Brown and I-Fen Lin at Bowling Green State University’s National Center for Family & Marriage Research Center conducted research that indicated the divorce rate among those over 50 years old had doubled between 1990 and 2009. This shocking figure was true even for those over the age of 65 showing it is not a phenomenon limited to divorce-prone boomers.

These same researches are predicting that the trend will only continue to escalate. The reason is that those who have already been through one marriage and are now remarried are more than 2.5 times more likely to divorce again than those who are still on their first marriage.

The reasons for the trend are hard to nail down and include everything from the larger number of older people, the age those people are living to, a greater acceptance of divorce, rising female empowerment and an increased emphasis on living a happy life.

Regardless of the cause, the trend has important financial implications for those going through a late in life divorce. The first thing to understand is that single life can be expensive. It’s not a simple matter of splitting all the bills in half. There’s a magnification to dividing bills and separate households are much more expensive to run than half of a marital household.

Beyond living expenses are the ordinary legal expenses associated with divorce. New legal documents will need to be drafted, often more than if you had divorced at a younger age. Wills will need to be redone, health directives, insurance polices, etc. Make sure you have a skilled North Carolina family law attorney on your side; you want someone experienced and capable of handling things amicably. At that age there’s no reason to try to end up inside a courtroom, the process is too expensive and could mean that a stranger decides what happens to your belongings.

Adoption Laws in California to Allow Multiple Parents?

Published on: June 21, 2012 | On behalf of Arnold & Smith, PLLC

According to an interesting article on Yahoo, California, a state already grappling with a wide array of legal issues surrounding alternative families, has added one more to the mix. The most recent bill, SB1476, would allow children to be legally given more than two parents.

As written, the bill would apply equally to men and women, regardless of whether they were in homosexual or heterosexual relationships. The bill’s sponsor, State Senator Mark Leno, D-San Francisco, says that the bill is meant to bring the state into the 21st century and acknowledge that complicated family situations exist. He says the state must recognize that “there are more than ‘Ozzie and Harriet’ families today.” The bill has already passed the state Senate and now awaits a vote in the state Assembly.

Senator Leno said he first realized there was a problem with the current system last year when he read about an appellate court placing a girl in foster care after her legally married lesbian parents were unable to care for her. The child was taken into state custody after one of her mother’s was put in prison and the other was hospitalized. The court was not allowed to appoint the girl’s biological father, with whom she had a relationship, as a legal parent. Something that Leno believes would have greatly benefited the welfare of the child.

The law would require that parents qualify under all legal standards and agree on custody, visitation and child support before a judge could divide up responsibilities. If California passes such a law it won’t be alone, already Pennsylvania, Delaware, Maine and the District of Columbia have laws on the books recognizing more than two parents.

The bill has some strong opposition. Glenn T. Stanton, from the group Focus on the Family, argues that though the bill appears to advocate for children, it is actually a tool to allow adults to create what he calls “radical families.” He says that children are best cared for by one mother and one father and “this bill would only take us farther down the trail of more ‘experimental families’ that fulfill adult desires, but consistently fail our children.”

Impact of Separation and Divorce on Paying for College

Published on: June 19, 2012 | On behalf of Arnold & Smith, PLLC

Though college has always been expensive, the amount of money needed nowadays is bordering on ridiculous. According to U.S. News and World report, the average tuition for a private university now exceeds $35,000 per year while kids in public schools can expect to pay almost $20,000. With costs so high it is no wonder that parents have difficulty affording putting their children through school. Unfortunately, the children of divorced parents are often the hardest hit, making a bad situation even worse.

One case that recently made the news highlighted the extent of the problem. Dana Soderberg, a young woman in Connecticut, filed suit against her father for his failure to pay her college tuition. Her parents were divorce back in 2004 while she was attending college. Her father signed a contract with Soderberg saying he would agree to finance her education until she was 25 so long as she diligently attended class. During her senior year her father stopped paying and his daughter slapped him with a lawsuit. The judge sided with the daughter, awarding her $47,000 plus attorney’s fees.

Thankfully it’s very rare for a legal dispute to rise to such a level. Typically, when a parent falls behind thing are worked out long before a lawsuit becomes necessary. However, the suit does point out a larger problem that disproportionately affects the children of divorced parents.