Charlotte Divorce Lawyer Blog

Can Divorce Lawyers in Charlotte Consider VA Disability Benefits in Alimony Cases?

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

A disabled veteran has filed a petition before the U.S. Supreme Court asking the justices to decide whether states can instruct divorce courts to count a veteran’s disability benefits when determining spousal support. Peter James Barclay, an Air Force veteran, also asked the Court to determine whether federal law prevents states from considering VA disability benefits communal property to be divided like other joint marital assets.

When Barclay divorced his wife in 2010 the divorce court judge considered the value of his VA benefits when awarding his wife $1,000 per month in alimony. His only income at the time was the $4,400 per month he received from the VA and Social Security. Barclay remains on disability due to post-traumatic stress related to his job as first responder to the 1995 Oklahoma City bombings. He witnessed the full horror of the attack, having to cart away dead and wounded. As a result, he’s unemployable and able to draw federal benefits.

His attorney is now attempting to have the United States Supreme Court decide whether Title 38 U.S. Code, Section 5301(a), which says that VA disability benefits are immune from “taxation”, claims of creditors, attachment, levy and seizure,” doesn’t also prevent them from being included in alimony calculations.

Barclay’s attorney readily admits that most states follow the example set by the divorce court judge in his case. This is based on the Supreme Court’s Rose decision which says that VA benefits are payments intended to compensate both the veteran and his family. Barclay disagrees; in his petition he claims that his disability pay is meant to compensate him for his loss of income. Barclay makes the reasonable point that if a veteran has a spouse the VA compensation tables award a higher disability payment and if the veteran gets divorced the extra payment stops. This mean the spouse should not be able to claim the base amount which remains unchanged regardless of marital status.

Barclay’s attorney also points out that Arizona recently passed a law shielding veterans’ disability benefits from alimony calculations. His petition mentions the two other states – Texas and Vermont – where VA disability benefits paid in lieu of retirement are not subject to division as property or to alimony calculations.

For a Cheap North Carolina Divorce Start Cooperating

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

Here’s something that should not come as news to anyone going through the process: divorce can be expensive. When a couple decides to end their marriage, it is almost always for personal reasons but these emotional issues can quickly change into fights over money. The result can be financial destruction for both parties. Everybody loses, except the attorneys. The bit of good news is that it doesn’t have to be this way. Divorce doesn’t have to destroy both parties financially; the decision rests in your hands.

If you want your divorce to stay calm (and less costly) you have to keep some of the emotion out. Years of bitterness have built up but you can’t let that distract you from the goal of reasonably dividing assets. Deal with your emotions in therapy, not in a battle of lawyers. Your divorce should be about dividing property, not righting wrongs.

Many couples fall into one of a few traps that lead to the endless cycle of fighting and pumped up divorce fees. Watch for the following issues and you can help avoid financial disaster.

• Anger – Couples that carry around bitterness or jealousy and approach divorce like a war can result in sky-high legal bills. If the couple is out to destroy one another then the result is often mutual destruction.

• Ignorance – Not understanding the process, the couple can make expensive mistakes that take time and money to undo.

• Speed – Couples that are in a dead rush can create more problems than they think they’re solving. When one party is so eager to finish the marriage they can make rash and ill-advised decisions which lead to terrible consequences down the road.

• Delegation – While you certainly need to rely on the advice of your attorney, don’t turn the whole process over and let them run the show. If you are hands off then your lawyers can get into a paper war which succeeds only in raising their fees and draining you of money.

Now that you know what leads to the problems, here are some strategies that can be employed to keep costs from ballooning out of control:

Equitable Distribution Lawyer – Divorce and Its Impact on Retirement Accounts

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

As we’ve discussed on the blog before, divorce does not only affect the young. Instead, the trend of baby boomers splitting continues to increase with about one in every four divorces happening with people over the age of 50. Divorce at this age presents challenged not likely to be encountered by those in their 20s and 30s.

One such issue is what happens to retirement accounts, pension plans and Social Security benefits. For many couples, retirement accounts represent a considerable chunk of their net worth, and as such, they must be addressed in divorce settlement agreements. Unfortunately, dividing retirement accounts and pension plans is a complicated process that involves tax and other financial considerations. Some of the important things to know about the process are listed below:

• Retirement funds created during the marriage are typically viewed as marital property.

Contributions to 401(k) are made via deductions from salary, pension plan benefits are a function of years on the job and salary earned, and husband and wife, regardless of whose account it is, often count on the money from both. Retirement funds added during your marriage are typically treated as marital property. However, if a spouse enters the marriage with money already in his or her 401(k), those funds are generally considered separate property, and are not included in the division of assets. It is possible that the increase in value of the separate property could be considered marital property, but that’s not always the case.

• Any retirement assets that are marital property can be divided, but the process depends on a number of factors.

When dividing 401(k) or 403(b) plans, the court must follow federal guidelines. When IRAs are involved its state law that dictates the division process. It’s important that your settlement agreement clearly explain how assets will be divided and how the funds will be transferred.

Same-Sex Adoption Laws Lead ACLU to Sue North Carolina

Published on: May 29, 2012 | On behalf of Arnold & Smith, PLLC

The same-sex marriage controversy in North Carolina deepened after it was recently announced that the American Civil Liberties Union (ACLU) filed suit against the state to overturn their laws that prevent gay and lesbian couples from adopting their partners’ children. The lawsuit was filed on behalf of six couples from the state who are seeking to adopt the children of their partners.

The couples are attempting to receive what’s known as a second parent adoption. This occurs when one unmarried partner adopts the other’s biological or adopted child. The North Carolina Supreme Court has banned such second-parent adoptions for same-sex couples. The ACLU claims that the law prevents same-sex couples from providing for the safety and securing of their children by not allowing them to be adopted.

In 2010, the state Supreme Court held that a lower court made a mistake by approving an adoption by a woman’s same-sex partner. The justices ruled that the same-sex partner was not a legally recognized parent of the minor child. The case at issue involved attempts by former State Sen. Julia Boseman, D-New Hanover, the legislature’s first openly gay member, to adopt her former partner’s biological son.

In their brief the ACLU says that, “There is no basis for the state automatically and categorically to reject any petition for second parent adoption by gay or lesbian parents – without even considering what is best for the children.” The group continues, arguing that, “The question of whether an adoption by a second parent is in an individual child’s best interest can be determined only through an individual review process, not through categorical bans such as that applied in North Carolina.”

The ACLU says that some of the benefits that come with a second-parent adoption include: ensuring that the children in the family are covered if one partner lacks health insurance; ensuring that families will stay together and children will not be taken from their home if something should happen to the biological parent; and ensuring that either parent will be allowed to make medical decisions or be able to be at their child’s bedside if one of their children is hospitalized.

Equitable Distribution of Marital Property

Published on: May 24, 2012 | On behalf of Arnold & Smith, PLLC

Family law judges in North Carolina apply the divorce concept of equitable distribution when it comes time to divide the property and debts between a divorcing couple. This means that the marital estate, assets and debts, are to be divided in an equitable manner.

This means that the division of property and debts between the divorcing parties should be fair, but not always equal. There is no fixed standard to divide property, each case will be decided on its own facts, and the court’s discretion will not be disturbed on appeal without a showing of clear abuse (a very tough standard to meet).

Property includes personal items (such as cars, furniture and household items) and real property (land and houses). Debts include mortgages, car loans, and credit card bills. Really anything you can possess is thrown into the pot before it’s all split apart.

It’s important to note that not all property is subject to this equitable division. Items that qualify as non-marital include the following: property acquired by either party before the marriage; property acquired after certain stages of the divorce process; property excluded by written contract of the parties (likely a prenuptial agreement); and any increase in value of non-marital property that did not result from efforts of the other spouse.

Judges consider multiple factors when deciding how to divide property between the parties and it’s sometimes hard to know which issues hold the most sway. Some of the considerations before the judge including the following:

• The financial contributions of each spouse to the marriage
• The age and health of the spouses
• The length of the marriage
• The existence of retirement benefits
• Any potential alimony awards
• The child custody arrangement

Celebrity Divorce Lessons

Published on: May 22, 2012 | On behalf of Arnold & Smith, PLLC

Many celebrity marriages are over in the blink of an eye. What can average Joes like us learn from the divorce mistakes of the rich and famous? Plenty. Though we might not have their money or fame, we can still learn lessons from their trials and tribulations:

• Get a prenup
When Mel Gibson divorced he was reported to have divided his $900 million fortune in half. Madonna’s ex, Guy Ritchie, is said to have walked away with an additional $90 million for his time with the singer. Kelsey Grammer, of Frasier fame, had to shell out $50 million to a former Playboy Playmate. Why did they all pay so much? Not because of their generosity, that’s for sure. All these unlucky souls lacked prenuptial agreements. Even if you don’t have their money (or close to it) a prenup can help secure the assets you do have and avoid an arbitrary division by a judge later on.

• Don’t trash your ex in public
Kim Kardashian and the rest of her family have wasted no time trash talking her ex, Kris Humphries since their 72-day marriage ended months ago. All the talking causes the process to drag on longer than necessary and leads to emotions running high along the way. Rather than hurting feelings more than has already happened keep quiet and tell your friends and family to do the same, at least until the papers are signed.

• Follow your child custody agreement
Follow whatever agreements you reached in court. When Alex Baldwin and Kim Basinger split Basinger tried to keep their daughter away from him. This move resulted in a very prolonged and nasty dispute between the two and led to hurt feelings all around. If you don’t hold up your end of the bargain your ex can drag you right back to court, costing you time and money, as well as damaging your relationship with your child, along the way.

Charlotte Divorce Tips – Protecting Finances

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

When North Carolina couples are confronted with the possibility of divorce once the emotional pain subsides, many begin to think about their financial wellbeing. There are some things you can do to help ensure that your assets are protected as divorce looms. Lynette Khalfani-Cox, a financial expert with AARP, gives the following suggestions:

Get the right family law attorney. Going through the phone book or randomly calling numbers will cast too wide of a net. Referrals from friends and family members are a good place to start and, given the high divorce rate, it’s likely you’ll know someone who’s been through the process.

Once you’ve reached out to an attorney it’s a good idea to have an in person meeting. Meet with them to make sure everything feels right; that they understand your particular needs and concerns and are skilled enough to do the work you need accomplished. If you trust them then listen to your instincts, if you get a bad vibe then it’s time to move on.

Don’t rely on mediation. Ms. Khalfani-Cox says that mediation is a good first step but that it should only be considered early on, to help get a feel for the tenor of the divorce. Making nice is what many women are prone to try to do and mediating your way out may not be the best way to protect your interests. A mediator’s job is to reach a resolution, not necessarily one that’s right for you.

Khalfani-Cox says the agreed upon settlement can be very one-sided and the mediator may not intervene. Only a good attorney can help tell you what’s reasonable and customary and what to realistically expect.

Set up separate accounts. One of the first things on the agenda should be shutting down the credit cards. No one needs to worry about one party going on a shopping spree and leaving the other with a hefty bill to pay.

Mortgages can’t be simply split up, there’s a process that must be gone through. Bank accounts can and should be divided right away. Also don’t forget that both parties are liable for credit card debt if they signed for the card, regardless of what agreement you have with your ex. If you were on the card and your ex doesn’t pay the company will come knocking on your door.
Know your assets and debts. Sit down and make sure you understand where you’re at financially. Calculate assets and debts. Take special attention when going through retirement accounts, pension, deferred compensation plans, etc. Things can get confusing and you’ll want to make sure nothing is missed. Information is power and you don’t want to be the party unaware of what assets are up for grabs when settlement time rolls around.

Charlotte Divorce Tips – Protecting Privacy (According to The Huffington Post)

Published on: May 15, 2012 | On behalf of Arnold & Smith, PLLC

As you prepare to go through the sometimes tumultuous process of divorce it’s a good idea to make sure your soon-to-be ex isn’t snooping on some of your most private information. There are important reasons why you should avoid sharing your new life with your spouse. Some suggestions you might consider to help this natural separation along include:

• Set up your own bank accounts. One of the very first steps you should take as a newly single individual is to open your own bank accounts. It’s a place to spend money without being watched and to deposit your paychecks without allowing access by the other party.

• Apply for your own credit card(s). Establishing your own credit history is important following a divorce, as is having access to a line of credit that isn’t connected with your ex. This is also a way to keep purchases private.

• Review your “one click” purchasing arrangements. Many retailers make it easy for repeat customers to buy items without having to reenter credit card information. This is great most of the time, but not if your ex is the one racking up the bills. Create your own accounts linked to your own credit card that your spouse does not have access to.

• Get a new cell phone. Your ex doesn’t need to read through all the numbers you dial in a given day or see who you’ve been texting (including lawyers, accountants, even investigators). Splitting apart your cell phone plan is a great way to get a little more privacy.

• Change your online passwords. Many people know each other’s passwords for most if not all accounts. This can include Facebook, email, online banking and shopping. While that’s great when you’re happily married, it can create a multitude of headaches during a contentious divorce. You want to make sure that you alone control your online presence and to do that you’ll need to change your passwords to something your spouse is unlikely to guess. Don’t overlook all those little accounts you never think about. Your ex may remember them very well.

• Change your social media privacy settings. Thing can be made much easier if your ex isn’t forced to see pictures of all the fun you’re having without him or her. Keep your new life quiet and out of your ex’s News Feed.

Divorce in Mecklenburg County, NC and Facebook

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

Facebook recently received tons of attention thanks to its disappointing IPO. Its’ now in the news for a different and surprising reason, a survey that revealed that in 2011 one-third of all divorce filing contained the word “Facebook.” The Wall Street Journal mentioned the shocking statistic and highlighted the news that 80% of U.S. divorce attorneys believe social networking in divorce proceedings is on the rise, according to data from the American Academy of Matrimonial Lawyers.

Attorneys cite examples of Facebook being brought up in the course of depositions, as evidence of infidelity or children’s pages being used to prove bad parenting. Once the information is released into the world it’s impossible to get it back and remains ripe for the picking when a contentious divorce takes place.

Only three years ago 20% of all divorce filings contained the word “Facebook.” Today that number stands at 33%, according to the AAML. Though the percentage increased the main reasons for the mentions have remained the same: inappropriate messages to people of the opposite gender and nasty comments between separated spouses.

One expert who researchers the relationship behavior of college students said that breaking up via Facebook is a way for some to permanently end a relationship that has been dragging on for far too long. Doing something so public is a good way to air dirty laundry and ensures that no attempt at reconciliation occurs.

Gay Divorce without Gay Marriage?

Published on: May 8, 2012 | On behalf of Arnold & Smith, PLLC

We’ve all read the articles about North Carolina voters’ decision to approve the constitutional amendment banning gay marriage. The issue is very controversial and has generated nationwide attention. But what about gay divorce? Like any other relationships, gay marriages can sometimes go bad. And, although gay marriage is not recognized still in many states, courts are having to grapple with what to do when a legally married gay couple wants to end things. One Ohio judge recently saw just such a case and decided to permit gay divorce in a state that doesn’t recognize gay marriage.

Two men from Columbus, Ohio, Jonathan Baize and Stephen Wissman, were granted a divorce in March by a judge with the Franklin County Domestic Relations Court. While it is certainly unusual for both parties in an Ohio divorce proceeding to be of the same sex, one attorney who was present at the hearing described the proceedings utterly “unremarkable.” Rather than serve as a historic moment in the state, the divorce was simply paperwork.

The two men married not long ago, on September 1, 2011, at a ceremony in New York State. They then returned home to Ohio but decided to divorce soon thereafter, a decision that has important implications for Ohio law. In 2004, Ohio voters approved an amendment to the state’s constitution that prohibited gay marriage. Supporters of the amendment have argued that by allowing a gay divorce a court would be forced to tacitly acknowledge that a marriage was valid in the first place.

Proponents of the decision turn to the letter of the law and point out that the amendment refers only to marriage and does not deal with same-sex divorce. The judge handling the case apparently agreed and decided to dissolve their relationship.