Charlotte Divorce Lawyer Blog

Registration and Modification of Foreign Child Custody and Child Support Order in Mecklenburg County Case

Published on: October 25, 2011 | On behalf of Arnold & Smith, PLLC

The North Carolina Court of Appeals entered a ruling in the case of Crenshaw vs. Williams which came out of Mecklenburg County Family Court. This case involved a motion to modify child custody and a motion to modify child support. This case involved the registration of a foreign child custody and child support order in North Carolina for modification. This case illustrates important differences between North Carolina’s jurisdiction to register and modify a child custody decree and jurisdiction to register and modify a child support decree.

In this case, the parties had a prior Order from Michigan which addressed child custody and child support of the parties’ minor children. Ultimately, Father and the minor children lived in North Carolina with Father’s new wife while Mother lived in Georgia. Father registered the Michigan child custody and child support order in North Carolina and made a motion to modify child custody and a motion to modify child support. The trial court entered an order modifying child custody and modifying child support. Mother appealed to the North Carolina Court of Appeals.

With respect to the modification of child support, the North Carolina Court of Appeals ruled that the Uniform Interstate Family Support Act (UIFSA) required that Father register the Michigan Order in Georgia to seek a modification. Since Mother was the obligor (the party who had to pay child support under the Michigan Order), UIFSA required that the Michigan Order be registered in Georgia. Georgia would then have the authority to modify the child support obligation, if it was appropriate.

With respect to the modification of child custody, the North Carolina Court of Appeals ruled that the registration was appropriate under North Carolina General Statutes Section 50A-203(2) and that the North Carolina trial court, therefore, had subject matter jurisdiction to modify the foreign child custody Order from Michigan. Since North Carolina was the “home state” of the minor children, it was appropriate to register and modify that child support order in North Carolina. North Carolina law dictates that the “home state” of a minor child is the state in which the children have resided for the six months immediately prior to the filing of the action.

Mother attempted to argue that the child custody and child support determinations were too closely intertwined to be determined separately and, therefore, the trial court should not have determined the modification of child custody issue since it did not have jurisdiction to determine child support. The North Carolina Court of Appeals considered this argument and rejected it because there was ample evidence that the trial court considered beyond the respective financial positions of the parties which related to the best interests of the minor children.

The North Carolina trial court awarded the Father primary custody of the parties’ minor children. There were numerous findings of fact which demonstrated a substantial change in circumstances affecting the wellbeing of the minor children since the prior child custody order was entered in Michigan. The trial court also found numerous facts which supported its finding that awarding primary custody of the minor children to Father was in the best interests of the minor children.

More Divorce After 7 Years? Or 3?

Published on: October 20, 2011 | On behalf of Arnold & Smith, PLLC

The common saying is “the seven year itch.” The theory being that around the seven year mark in a marriage, the couple is likely to become too comfortable and maybe even disenchanted with the relationship. Similarly, it may be that the rush of first being married has worn off. Or, maybe the couple has finished having babies so that thrill is gone too. Obviously, there is no formula which can predict with any certainty how long a marriage will last. Some end in divorce sooner, some end in divorce later, some marriages do not end in divorce. Perhaps the marriage ends when one of the spouses passes away.

But, according to a study in the UK involving 2,000 respondents, more couples run into trouble after the first three years of the marriage. The data seems to show that this is the point where the honeymoon phase really wears off. Similarly, this is also the point when the couple is likely to be making more significant financial investments together. Maybe the married couple signs an apartment least together, gets a joint bank account, joint cell phone contract, buy a house or maybe start having children (though it seems like couples are waiting longer and longer these days).

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.

Order Granting Relief from Judgment Upheld by North Carolina Court of Appeals

Published on: October 13, 2011 | On behalf of Arnold & Smith, PLLC

The North Carolina Court of Appeal upheld a trial court which granted wife’s motion for reconsideration. In this case, both the husband and the wife had declared bankruptcy. There was a second mortgage on the former marital home. While both parties identified the second mortgage in their bankruptcy, wife asserted that she was not responsible for that second mortgage.

The parties had a hearing on post separation support. During this hearing, Husband’s attorney asserted that there was no mortgage encumbering the former marital home. The parties reached a settlement before the end of the post separation support hearing. They signed a memorandum of judgment which called for husband to pay $2500 to wife and to transfer his interest in the former marital home to wife.

Husband complied with the requirements of the memorandum of judgment by paying $2500 to wife and transferring his interest in the home to wife via a Quitclaim Deed. Wife subsequently learned that there was, in fact, a mortgage encumbering the property. She filed a motion for reconsideration pursuant to North Carolina Rules of Civil Procedure Rule 60 and asked the Court to set aside the Consent Order. The trial Court granted the motion for relief from Judgment and Husband appealed.

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.

Common Law Marriage Appeal Dismissed as Interlocutory

Published on: October 6, 2011 | On behalf of Arnold & Smith, PLLC

The North Carolina Court of Appeals dismissed an appeal as interlocutory. The case involved a man and a woman who had lived together in Texas before moving to North Carolina. The parties moved to North Carolina, separated and the woman filed against the man for absolute divorce, post separation support, alimony and equitable distribution. She alleged that, under Texas law, the parties were common law man and wife. Of course, North Carolina does not recognize common law marriage.
The man answered and denied that the parties were married. He also raised counter claims based upon property rights, but did not raise any Chapter 50 counterclaims. The trial court determined that the parties were not married because, under Texas law, the parties were required to have a present intention to be man and wife. Apparently, the fact that they were separated and suing one another was convincing to the trial court.

Same-Sex Marriage Okay with Most in North Carolina?

Published on: October 4, 2011 | On behalf of Arnold & Smith, PLLC

As reported by the Charlotte Observer (Poll: Most oppose same-sex marriage ban), according to a recent poll conducted by Elon University, fifty-six percent of North Carolina residents oppose a North Carolina state constitutional ban on same-sex marriage. Also, the number of individuals who would prefer to see no legal recognition for same-sex couples has dropped over the last two years.

Only thirty four percent of those polled oppose any legal recognition for same-sex couples. This figure is down significantly, from forty four percent, from the March 2009. Following a similar trend, thirty three percent of those polled support full marriage rights for same-sex couples, which is up from only twenty one percent in 2009. Roughly the same percentage of those polled support civil unions or partnerships, but not full marriage rights.
The study surveyed 594 North Carolina residents with a plus or minus 4 percentage point margin of error. The poll did not restrict respondents based on voter eligibility or likelihood of voting.

Divorce No More?

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

According to a report by Reuters (‘Til 2013 do us part? Mexico mulls 2-year marriage), legislators in Mexico City are considering the concept of temporary marriage licenses. The new law would allow the couple to, on the front end, decide on how long their marriage would be. The minimum duration of of a marriage contract would be for two years – renewable upon the election of the couple. The couple would also decide, on the front end, how children and property would be handled if the contract is not renewed.

Divorce rates in Mexico City are much higher than in other parts of the country. In Mexico City, approximately half of the marriages end in divorce – often within the first two years.

View and Print our Charlotte Divorce Lawyer Blog Family Law Newsletter – Fall 2011

Published on: September 27, 2011 | On behalf of Arnold & Smith, PLLC

In this issue of the Charlotte Divorce Lawyer Blog Family Law Newsletter we take a look at information garnered from census data going all the way back to the 1940s. The U.S. Census Bureau has copmpiled a new report which evaluates marriage and divorce in America. We also look at a case out of Georgia where the Supreme Court upheld a divorce agreement – even when the circumstances changed. Also, a court in Virgina recently ruled that a husband could pay his wife by transferring some of his retirement benefits to her rather than transferring cash. Finally, we take note of a case out of Connecticut which ruled, essentially, that a postnuptial agreement must be “fair” at the time of the divorce.

Click here to view and print our Charlotte Divorce Attorney Blog Family Law Newsletter – Fall 2011:

CHARLOTTE DIVORCE LAWYER BLOG FAMILY LAW NEWSLETTER – FALL 2011

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.