Charlotte Divorce Lawyer Blog

Charlotte, North Carolina Divorcing Couples Should Beware of Snooping Spouses

Published on: February 23, 2012 | On behalf of Arnold & Smith, PLLC

As a recent article on USAToday.com points out, more and more divorces in the modern age involve electronic bad acts. As couples store and transmit increasing amounts of information electronically, through email, social media and text messaging, spouses are increasingly spying on each other’s communications, sometimes even illegally. Because of the speed with which this happened the law has found itself unable to keep up which has left many unanswered questions about what kind of behavior is acceptable.

A judge in Nashville, Tennessee notes that technology has “has resulted in a lot of evidence, not only of romantic involvement of one spouse with someone else, but it can also result in proof of undisclosed assets or responsibilities, financial misconduct.”

As this new type of information proliferates judges find themselves having to sort out subtle nuances. For example, how much of a shared computer is one spouse permitted to access? What if one party knew another’s e-mail password before divorce proceedings began? And what are the repercussions for breaking those rules?

The thorniest issues by far involve email and social media communications. Attorneys have had to adapt to the issues too and an experienced Charlotte divorce attorney would recommend that you chance your passwords when you begin divorce proceedings. One Nashville attorney is quoted as saying that “If you don’t change your passwords, you left them the key to the house.”

If one party knows another party’s password before the divorce proceedings, it’s possible that he may legally be able to read and save her e-mails during the proceedings. However, more extreme examples of snooping behavior, such as spyware or methods aimed at intercepting emails, are more legally troublesome. By going after all emails it can include confidential communications with attorneys and, as such, can result not only in civil liability, but also a criminal offense.

Even if criminal charges are not filed, the information obtained from snooping software could ultimately prove useless. Attorneys are able to object if certain documents have been obtained illegally and avoid having the evidence entered into the record.

Most attorneys also advise clients to avoid discussion of any sensitive matters that could become relevant in a divorce proceeding while on social media sites. Email communications might be protected due to the expectation of privacy, putting comments online on Facebook is certainly not private and the law would likely recognize no protection for such remarks.

Charlotte Divorcing Couples Should Watch What They Text

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

According to an article in the Chicago Tribune, North Carolina couples who are heading for divorce should be careful about texting because their heated words could be used against them later in court.

According to statistics from the American Academy of Matrimonial Lawyers (AAML), many top divorce attorneys say they’ve seen a spike in the number of cases using evidence from cellphone text messages over the past several years as the prevalence of smartphones increases exponentially.

The rise in text message evidence becoming a part of divorce cases follows a rise noticed a few years ago by the AAML relating to evidence from Facebook messages. “With emails you can think about and rewrite them. There is a window of opportunity to rethink what you are saying but text messaging is immediate,” said Ken Altshuler, the president of the AAML. “We get a lot of text messages that people send out without thinking.”

Altshuler described text messages as “spontaneous venting” that often come back to haunt people. They’re very easy to write and distribute quickly but the implications can be far longer lasting. Text messages on your phone seen by others can also be mentioned and brought into divorce proceedings. Altshuler said, “I have used text messaging for cross examination.” He continued by mentioning that he had also submitted texts as evidence. “I would say in the last six months there have been a lot of text messages involved in litigation. For whatever reason, people are texting more and not thinking about what they are texting.”

According to the AAML survey text messages were simply the most commonly used form of electronic evidence derived from cellphones. Other information taken from smartphones include emails, phone numbers, call histories, GPS and Internet search histories. As such, North Carolina couples need to be careful with what information they have sitting around that may later be used against them.

Altshuler believes that the reason for the surge in text evidence is that people have their guards down because they mistakenly believe texting is safe, all because the messages aren’t easily printed out. This is a false sense of security, as the recent poll shows. While text messages cannot easily be printed, it can be done.

Benefits of Pre-Nupts in North Carolina

Published on: February 16, 2012 | On behalf of Arnold & Smith, PLLC

Asking for a prenuptial agreement may not be the most romantic thing, especially with Valentine’s Day just behind us. That might not be true according to some experts who suggest that sitting down with a soon-to-be spouse and making arrangements for the worst might do a lot to alleviate worries going into marriage.

According to a recent article on Yahoo.com, everyone could benefit from a prenupt, even if you’re not going into marriage wealthy. One divorce attorney pointed out that “You might accumulate assets during the marriage, and even a young couple embarking on their own careers wants to make sure that what they acquire during marriage isn’t just left up to a judge to divide.”

Trying to predict how a court will divide assets is all but impossible and the certainty that a prenup offers is one of its best features. No two divorces are alike and judges might make choices with your assets that you weren’t prepared for. Student loan debts, often viewed as personal might actually be made marital burdens and split between the parties under certain circumstances. By drafting a clear plan outlining how your debts and assets will be divided in the event of divorce couples can shield themselves from some of the uncertainty of a litigious divorce.

The following are a list of four reasons you should consider creating a prenup:

1. Talking about potential problems can shed light on the status of your relationship today.

Many couples today enter marriages on an equal footing. Life and families can change the financial picture with one person staying at home and another continuing in their career. When you ask about the possibility of alimony in the event of divorce many couples are surprised to hear the response of their significant other and shocked that it might not be what they thought. If your husband balks at the idea of paying support then that can play a role in deciding whether or not you’ll continue to work.

2. You can create a post-nup.

While post-nuptial agreements are tricky and can be more difficult to enforce, they can be created if each party brings something to the table. A post-nupt might make sense for instance if one spouse decides to stay home and wants to protect themselves financially.

3. Prenupts cost half as much as the average engagement ring.

A typical prenupt costs around $2,500, close to what it costs to have a lawyer create an estate plan. Do-it-yourself forms from websites (LegalZoom.com) can sometimes be tossed out of due to legal requirements not being met and are not a viable alternative. The average engagement ring costs about $5,200 according to The Knot, putting the cost of a prenup into perspective.

Claiming Dependent Children on Taxes in North Carolina

Published on: February 14, 2012 | On behalf of Arnold & Smith, PLLC

Many people going through a divorce have questions come tax time as the financial changes their family has gone through become clear. When and how a person can claim a child following a divorce can depend on a number of factors. The first step before you claim a child as a dependent is to make sure he or she fulfills certain basic criteria, all of which are set forth in IRS regulations.

First, and most obviously, the child in question must actually be your child or a descendent of your child. This does not mean the child must biologically be yours. It can mean either through birth, adoption or foster parenting. The child in question is also allowed to be a sibling, half-sibling or step-sibling, or a descendant of any of these.

The child being claimed must also be younger than 19, or 24 if he or she is a full-time student, and must also be younger than you (something that shouldn’t be much of a problem). The only caveat to the age requirement is if your child is permanently disabled, in which case you can claim him as a dependent regardless of his age.

Beyond these two fairly simple factors, the IRS also looks to the child’s residency throughout the year. Typically, you are permitted to claim a child as a dependent if he or she resided with you for more than half of the year. Of course, in shared custody situations, this can become tricky. The residency requirement means that parents with primary custody of their child will be the ones that are able to claim the kids as dependents.

There are, however, situations where a non-custodial parent can claim a child as a dependent if several additional factors are met. First, the parents must be legally divorced, separated under a written separation agreement, or living separately for at least the past six months. Second, the child must have received more than half of his financial support over the year from either one or both parents. Third, the child must have been in the custody of one or both of the parents for more than half of the year. Fourth, the custodial parent who would typically be able to claim the child must sign a form declaring that they will not claim that child as a dependent for that year’s taxes. The non-custodial parent must then attach this declaration to her tax return.

Discrimination and North Carolina Child Custody Cases

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

According to one recent article, a new bill before the Utah legislature, HB88, would add a statement to Utah’s divorce statute saying that courts, when making a child custody determination, may not discriminate against a parent based on age, race, color, national origin, religious preference or gender.

The bill’s sponsor, Representative Ryan Wilcox, R-Ogden, said he intends for the bill to ensure that judges consider both parents when deciding issues of custody, giving a complete look to both instead of the antiquated notion that the mother is a better choice in all circumstances.

One family who recently lost a young child after the drug addicted mother who won custody of her failed to prevent her death said that they were told, “unless the mother was in a hospital or a coffin there was nothing they could do.” Dan Deuel, of the American parental Action League, said that “In my mind, no discrimination is a no brainer.”

While the committee unanimously endorsed HB88, some lawmakers expressed their displeasure at having to remind judges to be fair in the first place. Representative Curtis Oda said that, “The court is supposed to be balanced. It seems to be going in the other direction.” Another lawmaker, Representative Jennifer Seelig, said she supported the legislation because it addresses the long-held notion that mothers are better parents than fathers. “I think it has potential not only for changing the system but for changing hearts and minds,” she said.

Women in North Carolina often end up without Health Insurance after Divorce

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

New research from the University of Michigan shows that women are more likely than men to wind up without health insurance following a divorce. The rates of women without insurance remain high even several years after a divorce becomes final.

The new study shows that many women lose their health insurance and struggle regaining it after divorce. Using 11 years of Census data, study author Bridget Lavelle looked at health insurance levels of women before and after divorce. She found that nearly 16% of women lose health insurance within six months of divorce and go without it for at least two years.

Lavelle, a Ph.D. student at the University of Michigan’s Gerald R. Ford School of Public Policy, said that the women with the highest risk of losing coverage are those who were covered under a husband’s plan prior to the divorce. Of that group, the rate rises to nearly 1 out of every 4 that will become uninsured following separation.

Going along with the loss in insurance, research indicates that after a divorce many women suffer a substantial decline in overall economic well-being. This general decline makes it harder for women to afford health insurance, even if they were not original included under their husband’s plan.

Lavelle’s study did not look at the situation for men, but previous research, she said, shows that men do not suffer the decline in economic well-being to the same extent that women do. “Men are also less likely than women to be insured through a spouse’s insurance,” she said. “For both of these reasons, the risk of insurance loss is probably substantially less for men.”

Study says Divorce at a Young Age Hurts Worst

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

A new Michigan State University study finds divorce at a younger age hurts people’s health more than divorce later in life. Study author and sociology professor Dr. Hui Liu said the findings, published in the journal Social Science & Medicine, suggest older people have more coping skills to deal with the incredible stress that results from a divorce.

Liu said the findings indicate that there ought to be “more social and family support for the younger divorced groups.” Liu suggested that this might include “divorce counseling to help people handle the stress, or offering marital therapy or prevention programs to maintain marital satisfaction.”

Liu analyzed the self-reported health status of some 1,282 participants in a long-term national survey. She measured the gap in overall health between those who remained married during the 15-year study period and those who transitioned from marriage to divorce and at what age.

Liu found the gap was wider at younger ages. For example, among people born in the 1950s, those who got divorced between the ages of 35 and 41 reported more health problems in relation to their continuously married counterparts than those who got divorced in the 44 to 50 age range. Researchers were surprised to learn that divorce appears to have a more negative health impact for baby boomers than for individuals in older generations. Liu said she would have expected divorce to be less impactful for younger generations because divorce is so much more common among their age cohorts.

Liu offered an explanation for the difference. Perhaps because the pressure to stay married is so strong among older generations only those with the unhappiest marriages actually moved for divorce and thus, felt relief when the divorce was finalized.

The study confirmed something we mentioned in a previous post (Divorce Can Kill), that those who went from marriage to divorce experienced a generally more rapid health decline than those who remained married. It’s good to hear that those who remained divorced during the entire study period showed no difference with those who remained married.

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?

Paternity and Child Support in North Carolina: The Impact of Senate Bill 203

Published on: January 26, 2012 | On behalf of Arnold & Smith, PLLC

In 2011 the North Carolina General Assembly passed a bill addressing how to go about setting aside an order of paternity and to allow relief from a child support order when the man responsible for payment is not the child’s father. The bill has a potentially important impact on child support cases where paternity is a disputed issue and thus deserves discussion.

Senate Bill 203 was introduced in Raleigh by Don Eastman and Floyd B. McKissick, Jr., and passed the NC General Assembly during the 2011 legislative session. It’ s intent was to modify existing child support laws. Section 1 of the bill states:

Notwithstanding the time limitations of G.S. 1A‑1, Rule 60 of the North Carolina Rules of Civil Procedure, or any other provision of law, an order of paternity may be set aside by a trial court if each of the following applies:

1) The affidavit of parentage was entered as the result of fraud, duress, mutual mistake or excusable neglect.

2) Genetic tests establish the putative father is not the biological father of the child.

The bill was proposed for several reasons, one being to address existing holes in North Carolina’s child support laws, another was to respond to the current economic climate and ensure that fathers are not forced to continue supporting children that they later discover are not biologically theirs.

The bill continues by clarifying that in any motion to set aside paternity it shall be the responsibility of the moving party (the person seeking to set aside the paternity determination) to meet the burden of proof. The legislature said that upon proper motion, courts should order the child’s mother, the child in question and the possible father to submit to genetic paternity testing.

If the court determines, as a result of genetic testing, that the potential father is not the biological father and that the order of paternity was entered as a result of fraud, duress, mutual mistake, or excusable neglect, the court may then set aside the order of paternity. It’s important to note that nothing in the language is meant to alter the current presumption of legitimacy when a child is born to a mother and a father during the course of a marriage.

Divorce and Social Security Benefits in North Carolina

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

For many elderly Americans Social Security benefits are a critical component of their retirement plan. If you’re a baby boomer in charge of monitoring your parents’ finances or a retiree you should be aware that under certain circumstances it’s possible you might be receiving less than you should. If a woman is divorced or has been married more than once, or a woman’s husband delayed taking Social Security, she might be entitled to a bigger monthly benefit than she is currently receiving. Though the difference may not be huge, it could be critically important to someone with a limited or fixed income.

Discussing the ramifications of divorce on Social Security payments is fairly standard practice nowadays. That wasn’t always the case, however, and many older couples might never have been counseled on the possible impact.

Though the problems are faced by both men and women, the fact that women typically earn less over their working lives means that they are more likely to be collecting less in benefits then they may be entitled to due to earnings of a former spouse. This is because of rules which say an individual is entitled to collect Social Security benefits based on his or her own earnings history, or 50% of his or her spouse or former spouse’s benefit, if it is greater than his or her own, and 100% if the former spouse is deceased.

There are a few rules in order for this to apply to divorced couples: 1) the marriage must have lasted 10 years or longer, and 2) the individual seeking a former spouse’s benefit must currently be unmarried, unless the second (or third, or fourth…) marriage occurred after the age of 60.

A great example of this is as follows: your parents were married in the 1950s, your dad worked hard and your mom worked hard raising kids and working part-time at relatively low paying jobs when time allowed. Your parents later divorced and your mom’s Social Security benefit is now $800 per month while your dad’s stands at $2,000 per month. Rather than continue collecting the $800, your mother is actually entitled to collect $1,000 per month if your dad is still alive and the full $2,000 if he is deceased. As an added benefit, if the Social Security Administration determines a spouse is eligible for increased benefits then that person will receive retroactive benefits going back six months. It does not matter whether the spouse with the higher benefit remarried and getting this increase does not require their cooperation. The Social Security Administration has all the necessary information and makes the determination based on its own records.