Charlotte Divorce Lawyer Blog

Big Child Support Change Brewing in South Carolina

Published on: March 13, 2012 | On behalf of Arnold & Smith, PLLC

According to a recent article by The State, a single South Carolina mother occupied with running a day care and raising two sons won a South Carolina Supreme Court case recently that may end up requiring divorced parents who pay child support to also pay for their kids to go to college.

The woman, Kristi McLeod said she was so shocked she had to stop by her lawyer’s office to ensure that she had heard the news correctly. The justices voted 3-2 in her favor, ruling that college education is now so critical to success in today’s world that the state has an interest in ensuring that it is paid for.

McLeod and her husband divorced in 1993. His income subsequently skyrocketed from $29,000 to almost $250,000 a year by 2008. Despite this vast increase child support for Kristi McLeod stayed at $175 a week for the two children. The whole time she never made more than $40,000 running a day care.

When McLeod’s son decided to go to college his father agreed via email to repay student loans and pick up miscellaneous expenses. The father also unilaterally decided to reduce his child support payments for his other son to $100 per week.

The father ultimately failed to hold up to his end of the bargain and McLeod decided to sue. A Family Court judge ruled in the father’s favor, saying he wasn’t required to pay college costs. The lower court judge also reduced how much support McLeod collected and refused to require her ex-husband to pay her attorney.

But the South Carolina Supreme Court decided to hear the case and reversed all previous lower court decisions on the subject.

In her majority opinion, Justice Kay Hearn wrote that, “Although the decision to send a child to college may be a personal one, it is not one we wish to foreclose to a child simply because his parents are divorced.”

The son has since graduated from college and is working as a fingerprint analyst for the FBI.

Two justices dissenting, citing current state law which specifically mentions paying support until a child finishes high school but does not mention college costs at all. “Had the Legislature intended for a parent to pay college expenses as an incident of continuing child support, I believe it would have specifically included the phrase ‘college graduation.'”

Same-Sex Couples and Child Custody Disputes

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

According to a recent article on Yahoo.com, a brewing battle between a Florida lesbian couple could spark an important debate over the definition of motherhood.

The women are both in their 30s and both members of law enforcement. One of the women donated an egg that was fertilized and implanted in the other. That partner eventually gave birth in 2004.

In 2006 the couple split up and the birth mother left the state with the child without informing her former partner. The egg-donating woman eventually tracked them down in Australia and began a battle to get the child back in Florida. The fight has now made its way to the Florida Supreme Court which has not yet decided whether it will hear the case. A trial judge ruled in favor of the birth mother saying the biological mother had no parental rights under Florida law. The lower court judge was quick to point out that he hoped to be overruled, but until then had to follow existing law.

The 5th District Court of Appeal did as requested and sided with the biological mother, holding that both women had parental rights to the child. The case combines several controversial issues, including a 1993 state law regulating sperm and donation and a larger question of the constitutional right of homosexuals to raise children and be entitled to equal protection under the law.

The biological mother is not attempting to blaze any trails. According to her lawyer she simply wants to see her daughter again, “She hasn’t seen her daughter in years, and it’s been terribly, terribly difficult for her.”

The Florida duo isn’t the only lesbian couple embroiled in such a dispute. One Virginia woman who renounced her homosexuality has been in hiding with her daughter since a 2009 court decision requiring that her former partner be given custody.

Closer to home, former North Carolina state Sen. Julia Boseman, the first openly gay member of the state’s Legislature, is suing for joint custody of a 2-year-old son born to a woman Boseman referred to as her spouse.

In the Florida case, the Court of Appeal decided that the women’s decision to separate did not dissolve the parental rights of either woman. This despite the argument by the birth mother citing the state’s law on sperm and egg donation, which says that donors “relinquish all maternal or paternal rights,” to argue that the biological mother wasn’t the child’s parent.

The appellate court reversed the lower court judge in a 2-1 decisions finding that the biological mother wasn’t merely a “donor” under the law because she and her former partner intended to parent the child together. The Court ultimately found that they could not find any valid legal reason to deprive either woman of parental rights. The majority further ruled that the donor law was unconstitutional as applied to this case.

Use Caution in Post-Divorce Dating

Published on: March 6, 2012 | On behalf of Arnold & Smith, PLLC

According to a recent article appearing on Yahoo.com, people emerging from a divorce may not find much luck in the dating department immediately thereafter. Though for some who had to go years without any new romance this is not only normal, it’s also healthier than a rebound relationship.

New York psychologist Leah Klungness, Ph.D. and co-author of The Complete Single Mother, says that while a divorcee may be experiencing pain and confusion following a divorce, it’s better to go through that then to numb yourself with an instant attempt to date. The distraction actually makes the healing process take longer.

As the single time drags on you may want to figure out why you’re dateless. Usually there are two main reasons for a post-divorce dating drought.

1. You’re not ready to date yet
You may feel lonely, your friends and family may try to set you up with someone but that does not mean you’re actually ready to date again. “Emotional preparedness for dating doesn’t happen magically because the final papers have been signed,” says Dr. Klungness. “Anger, bitterness, thoughts about betrayal and infidelity can linger. If these feelings aren’t worked through, they quickly surface, even in casual dating situations, and can sabotage any chance of romance.”

The best rule of thumb according to Dr. Klungness is that, “When the thought of dating starts with an ‘I should’ instead of an ‘I want,’ it’s a red flag.” Rather than rush into something you’re not really ready for, regrouping and giving yourself time to heal is the best plan. Use the time to do the things you love, concentrate on yourself and put yourself first for once.

One sign that you may be ready to date is when people start to genuinely look attractive to you. “Repeated instances of being attracted to different people suggests the authenticity of your feelings,” explains Jerald Jellison, Ph.D., author of Managing the Dynamics of Change. According to Dr. Jellison, when you’re attracted enough to consider spending time with five different people you should be ready to begin dating again.

Change to Federal Benefits May Leave Those Behind on Child Support with No Money at All

Published on: March 1, 2012 | On behalf of Arnold & Smith, PLLC

According to a recent article in the Charlotte Observer, an important change could soon have an unexpected impact relating to child support debts. The change has come about as an attempt to reduce money spent by the federal government in mailing out paper checks. The Treasury Department has decided to begin making government benefits payments electronically in March of 2013. This will put a stop to the paper checks that many rely on to shield a portion of their monthly income from states that attempt to collect back child support.

States have the power to put a freeze on bank accounts of those who owe child support. A relatively recent ruling by the Treasury Department now authorizes states to freeze Social Security, disability and veterans’ benefits that appear in bank accounts. Once the decision to eliminate paper checks is implemented some 275,000 people could lose access to all of their income.

This presents huge problems for a certain segment of the population, the often poor men behind on their child support. There are many instances where these back payments are decades old and concern child who are long since grown. Much of the money owed is for interest and accumulated fees.

Of the money that is collected most will go to governments, not to the children of the men who were owed the money. States are permitted to keep this money as repayment for money they spent on providing welfare services for these children.

Though the goal is a good one, cracking down on deadbeat dads not paying the money they owe to their children. Unfortunately, the method of going about this will likely produce complicated and even counterproductive effects. Many of the men on the receiving end of this new collection practice are already facing financial ruin in the form of eviction, foreclosure and inability to pay other bills. By allowing states to seize federal benefits, these men may very well be left penniless.

Beginning next march the Treasury Department will deposit all federal benefits directly into bank accounts or load them onto prepaid debit cards. Regardless of the chosen method state governments will be allowed to reach the money. According to the Treasury Department these electronic payments are expected to save the government $1 billion over the next 10 years. The savings result from the shipping costs: about $1 to mail a check compared with about 10 cents for an electronic transfer.

States are currently only permitted to garnish only 65% of the benefits an individual is entitled to before they are disbursed. This same limit does not apply once the money is in an account and states are then allowed to have banks freeze it.
Other federal agencies are calling the practice into question, starting with the Department of Health and Human Services. DHHS does not want states to collect child support so aggressively that poor people are left with nothing, spokesman Ken Wolfe says. Though details are scarce, Wolfe said HHS is developing guidelines for states to “make sure we’re not putting someone into deep poverty as a result of an automatic collection.”

DHHS says they have research indicating that the policy could make life harder for people collecting government benefits. People who owe large amounts of child support are almost exclusively poor. The figures are stark: among those owing $30,000 or more, three-fourths had no reported income or income of less than $10,000.

Name Change Following Marriage Still a Sensitive Subject

Published on: February 28, 2012 | On behalf of Arnold & Smith, PLLC

One recent article on Yahoo.com, discussed the issues women face even in the modern age. Though women’s place in the world has risen dramatically, there are still instances where problems persist. One example of a semantic issue that nonetheless speaks to a woman’s role in the world involves the attitudes about women changing or not changing their names following marriage.

A study dedicated to examining the issue was authored by two Pennsylvania State University sociologists, Laurie Scheuble and David Johnson. Previous studies regarding name-changing focused on the New York Times wedding announcement page, something that resulted in a very limited pool of research subjects. This new study used data from two surveys (one from 1990 and the other from 2006) conducted at a Midwestern university. Additionally, the study surveyed hundred of students at Penn State asking about name-changing and their opinion on the practice.

Surprisingly, the 2006 survey showed that students were three times more likely to say that if a woman did not take her husband’s last name upon marriage, she was less committed to him and their future together. Perhaps unsurprisingly, the Midwestern women were less likely than those at Penn State to say they wanted to keep their own names. The oddest part of this information is that the 2006 survey indicates stronger attitudes against name-changing than the 1990 survey.

In 1990, only 2.7% of students believed that a woman keeping her own name was less committed to her marriage. By 2006 this number jumped to 10.1%.

Regardless of the practice’s perception among Midwestern college students, a woman changing her name (or not) is no indication of commitment in a relationship. Evidence of this is that educated professional women tend to marry at a later age and thus hang onto their own names yet also tend to have more long-lasting (and hopefully happier) marriages.

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.