Is North Carolina a No-Fault State?

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Lately, I’ve encountered lots of people who are confused about whether North Carolina is a no-fault divorce state. In a word, yes. The answer is that this is a no-fault divorce jurisdiction. So…what does that mean?

A no-fault divorce is one in which neither party has to prove marital fault in order to obtain a divorce. All you have to do to get divorced in NC is (a) be separated for at least one year and one day and (b) one of the parties must have lived in the state for the past six months. You don’t have to give the court any reason that you want to get divorced. Nobody has to have cheated. Nobody has to have committed acts of domestic violence. You don’t have to claim irreconcilable differences. Nobody has to have done anything wrong. The facts and circumstances of your divorce can remain between you and your spouse, as far as the court is concerned. You can get a divorce if you meet the two criteria above.

Now, this doesn’t mean that the circumstances of the marriage and the break-up won’t be part of the case if you or your spouse makes claims for alimony, distribution of property, child support, child custody, etc. In deciding those questions, the court may have lots of questions about what went on in the marriage and who did what. But, just for purposes of getting that divorce decree that dissolves your marriage, you do not have to prove that anyone is at fault. Your spouse also cannot stop you from getting a divorce, provided that you can prove that you have been separated for a year and a day, and you have lived here for the past six months. As long as the necessary paperwork is completed and filed accurately and properly, you are entitled to a divorce whether your spouse wants it or not.

Of course, if you are confused about your rights, or what you can and should claim in a divorce, talk to a family lawyer about your unique circumstances. Some of the claims mentioned above, like alimony and division of property, are lost if they are not asserted before the divorce judgment is granted.

Protect Yourself BEFORE Separating From Your Spouse

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In the heat of the moment, when things are going awry in your marriage, it’s hard to think clearly about all the practical, sometimes scary, aspects of separating from your spouse. If you have time, however, to safely slow down and make a practical plan before moving forward, here are some things to do before you begin the divorce process.

  1. Have you tried counseling?  Sometimes you just know that things are over. But if you have doubts and your spouse is willing, it can be so helpful to seek professional counseling, either together or separately. Even if your spouse is not willing to try therapy, it’s beneficial to go on your own. Having a neutral party to talk things over with, get feedback, and focus on what’s important for your well-being is invaluable. In my opinion, a good divorce lawyer with your best interests at heart will always encourage you to seek counseling, or even insist upon it in very tumultuous circumstances.
  2. Get to a lawyer ASAP.  Scheduling a consultation with a lawyer does not mean you’re obligated to hire that lawyer or move forward with a separation or divorce at all. It is simply a good idea to get as much information as you can, as early as possible. A lawyer can give you useful advice about protecting yourself, your children, and your finances before you leave the marriage. While friends who have been divorced are a good source of comfort and camaraderie, there is no substitute for sound legal advice.
  3. If you have had an affair, do not confess to anyone before talking to a lawyer. North Carolina is one of the states where adultery is illegal, and even more problematically, a jilted spouse can actually sue their spouse’s lover. Having an affair can cost you (and your paramour) substantially. It can also have drastic consequences on whether you or your spouse will be awarded alimony. If you have been unfaithful and have a guilty conscience, resist the urge to spill your secrets immediately. First, have a confidential meeting with a lawyer to discuss the possible consequences and how to handle them.
  4. Know what your assets are, and put yourself in a strong position to protect them.  First of all, if your spouse has been the one who’s in charge of finances, taxes, and investments, the best time to educate yourself is while you’re still living together. You and your lawyer are going to need to know about all of the property, assets, and debts that you and your spouse share. Don’t forget about insurance policies and retirement accounts. It is much easier and less expensive to find out by looking through paperwork in your own home, than to try to uncover everything during the discovery process of your divorce. Talk to your lawyer about what financial documents you should look for and gather for your case. Secondly, when you and your spouse do separate, keep possession of the things you want and need, like your car and at least a portion of the cash in savings. If you’re worried your spouse might sell anything valuable, like heirlooms or collectibles, keep them. Finally, make sure your lawyer knows about any real estate that you and your spouse own, and any belongings that do wind up in your spouse’s possession that you believe should not be. Your lawyer can help you take steps to recover your possessions and protect your real estate from being sold without your consent.
  5. Start preparing for your separate life.  Before you actually separate from your spouse, start assembling the basics that you will need to start your new life. Close or freeze joint credit accounts and block access to home equity loans. Close your joint checking and savings accounts and open separate ones. Change the name on utilities if necessary, and change the passwords on accounts that you no longer want your spouse to be able to access. Consider getting a post office box so you can securely receive mail from your lawyer, bank, etc. Again, think strategically and talk with your lawyer about ensuring that your transition will be as simple and well-handled as you can make it.

This list is not exhaustive by any means, but it should give you some things to think about if you’re considering or planning to divorce. Every case is different, so the bottom line with most issues is to talk to your lawyer about the best course of action.

 

Can Gun Ownership Affect Child Custody?

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13077447_mlRegardless of your stance on gun rights or your comfort level with guns, all parents worry about their children having access to firearms.  If you are going through a separation or divorce, you might be concerned about whether any firearms at your ex’s home are secured away from the children.  Or you might worry that the judge will question your judgment or parenting because you keep firearms in your own home.  If you own guns, you might wonder whether you should get rid of them or whether they might impact your custody case.

First of all, in cases where domestic violence is alleged and a protective order is issued, the Court will often order the defendant to surrender his or her guns to the Sheriff. Even when violence is not an issue, however, the Court may take gun ownership and safety into consideration in determining custody issues. As you have probably heard if you have ever talked to a lawyer about a custody case, the Court’s sole concern in determining child custody is what is in the best interest of the child. The presence of firearms in the child’s environment is therefore certainly within the purview of the Court.

While safe firearm ownership and storage may be of interest to the Court, there is case law that suggests that the Court must make findings that the parent’s gun ownership specifically endangers the child in some way in order for the Court to factor it into a custody determination. If a witness testifies, for example, that Mom routinely leaves her loaded handgun unattended in her purse or under her pillow where her child could find it, the Court may find that she is endangering her child and order her to either secure her weapon or surrender it until her child reaches 18. On the other hand, a mom who owns numerous firearms, but is vigilant about keeping them properly secured and beyond the reach of her children, is unlikely to be negatively affected in a custody case. Since the judge’s chief concern is always the safety and well-being of the children, a parent who shows the Court that she is a safe and responsible firearm owner probably has little cause for concern about being a gun owner who is involved in a custody case.

It is, of course, wise if you are in a custody dispute, to ensure that all of your firearms and permits are properly documented and updated and that you can provide the Court with evidence (such as photos, testimony of friends, or receipts for gun safes) that your firearms are securely stored in your home. If you anticipate that this will be an issue in your case, discuss it with your attorney early so that you can plan to resolve any concerns of the Court and ensure that your gun ownership does not interfere with your custody case.

Our Split Is Amicable…Can My Ex and I Use the Same Lawyer?

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Sharing one lawyer?

Some might find this hard to believe, but divorcing couples sometimes ask if they can share one lawyer.  This makes a lot of sense, in theory.  If you and your soon-to-be-ex agree about how you will divide your property and raise your children, then you might be eager to simply get the divorce process behind you and move on with life.  It seems rational and practical, then, to have one lawyer draft a simple agreement that reflects your wishes, sign it together, and get going.

The answer to the question in the title above, however, is NO.  Although such an arrangement might seem like a smart money- and hassle-saving arrangement, there are important reasons why a lawyer cannot represent both a husband and wife in a divorce.  The ethical rules for lawyers prohibit representing both parties in an adversarial, or potentially adversarial, proceeding. Even if you are the rare ex-couple that gets along brilliantly, you are still opposing parties in a legal matter.  No lawyer can adequately represent both sides of a dispute, without favoring one over the other.

Like anyone going through a divorce, you deserve a lawyer who has only your interests in mind as you navigate the divorce process. Even if you and your spouse agree that your case is cut and dry, if you want legal guidance, you’ll each have to seek your own.

Who Gets Custody of the Pets?

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Jesse

If you’re like me, you probably think of your pets as family.  The handsome fella pictured above is my dog, Jesse, who has been my sidekick for almost ten years now.  (Of course, I couldn’t resist using his picture for a post about pets.)  He was briefly missing the other day when he took off on an unsanctioned run after a stray cat.  While I looked for him in a panic, I couldn’t stand the thought that he might not come home.  Thankfully, he returned unharmed (and actually seemed pretty proud of himself), but what about divorcing couples who fear that they may never see their pet again because the angry ex won’t share?  What do you do if neither spouse can stand the idea of losing the pet in the divorce?

First of all, although we often feel that our pets are family members whose best interests should be considered, legally animals are considered property in North Carolina.  This means that they are valued and divided up just like household goods in the divorce proceedings, the same as the wedding china or the furniture.  Even more dismaying to animal lovers, the value assigned to the pet is simply how much it would cost to replace, not the value that the owners feel the pet has to them.  For example, say a couple cannot agree on who should keep their beloved dog.  During the equitable distribution process, the court might assign a value of $50 to the dog, give the dog as property to the wife, and give the husband an extra $50 in other property to make it equal.

Obviously, this is not usually the best solution when two people love their pet(s) equally.  Ideally, a divorcing couple should try to work out a solution between themselves.  Unlike the court, they can consider the needs of the pet and where the animal will be happier.  They know whether the pet needs to stay primarily with the kids, or would do better wherever it can have a bigger yard to safely roam.  A couple can even work out a custody agreement to define visitation and support for their pet.  Such an agreement is just made as a private contract between them to address their rights and responsibilities with regard to the pet.

There is one important exception to the “animals as property” general rule in North Carolina.  The General Assembly wisely included a provision in the domestic violence statute (N.C. Gen. Stat. § 50B-3(a)(8)) that allows a pet to be included in a domestic violence protective order.  So in domestic violence situations, the court can order that the victim should have custody of the family pet.

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Do I Really Need a Prenup?

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Prenup

When most of us think of prenups, we probably think of wealthy tycoons or Hollywood stars who are marrying partners much younger and less financially stable than they are.  In the real world, however, there are several reasons why a prenup (aka “premarital agreement”) might be right for you and your future spouse.

Make Your Own Rules

North Carolina couples who plan to marry have two options: (1) marry without a premarital agreement and accept all of the legal consequences of our state’s family, estate, and trust laws; or (2) enter a premarital agreement before marriage that will enable the couple to choose whether and how certain family, estate, and trust laws will apply to them.  Essentially, if you get married without a premarital agreement, you are allowing the state to write your agreement for you — the legislature’s pronouncements on family law, estate law, and trust law (and their amendment and repeal over time) will guide the court in the event you divorce.  You might think of this akin to dying without a will — someone else will make the rules about what happens to your family and property.

A valid, carefully crafted premarital agreement, on the other hand, allows you and your betrothed to choose the approach that will work best for you if you ever separate.  As a couple, you know your unique circumstances better than anyone else, and you may benefit from rejecting the one-size-fits-all approach of the state statutes.  Instead, you have an opportunity to determine your own path in the event that things go south.

Address “Business” Issues Before Walking Down the Aisle

There’s no point in denying it:  negotiating a premarital agreement is not the most romantic part of wedding planning.  While the most important, inspiring aspects of a wedding are about love and commitment, the unavoidable truth is that marriage is also a business decision.  That’s true whether you enter a premarital agreement or not.  In the event that you and your future spouse divorce, your property will be divided as if you two had a business partnership.  Business people make contracts to govern the division of money and property all the time, so it’s not absurd to think that you should too.

Although it can be difficult to buckle down and discuss finances when you’re in the haze of wedding planning, before the wedding is actually an ideal time to work through these issues.  You’re not clouded by hurt and anger the way many are when they are faced with the business aspects of separating.  You can work together on realistic solutions that will work for both of you if you ever separate.  Plus, even the most open, in sync couples can benefit from going over their finances and getting everything out in the open before committing their lives to each other.  For many, it can be very freeing to feel legally and financially secure before the wedding.  A premarital agreement can ideally help couples minimize financial stress so they can focus on their relationship.

But How Do I Know If I Should Get a Prenup?

With a few exceptions, most couples can benefit from having a premarital agreement.  They’re not just for reality starlets and real estate moguls; anyone who has property or debt, owns a business, has a professional license, has children from another relationship, or has a significantly higher or lower income than their partner should think about getting a prenup.  Retirement savings, valuable collections, and business assets are just a few of the things that can be addressed and protected in a premarital agreement.  Whatever the financial circumstances of you and your future spouse, chances are that you have assets or debts that you would prefer to make your own decisions about together, rather than leaving the decision up to the complex and changing laws of the state.  If you are interested in discussing a premarital agreement, please contact me to schedule an appointment.

The Technology of Cheating

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Website for affairs

If you live in North Carolina, you’ve probably known someone who has sued or been sued for the tort of alienation of affection.  Or you’ve at least heard of a jilted spouse who wants to sue the spouse’s lover.  According to Wikipedia (and they’re never wrong, right?), North Carolina is one of only 7 states that still allows lawsuits for alienation of affection.  This law has been around for a long time, has survived numerous attempts at repeal, and is used today far more often than you might expect.  Thus, in North Carolina an outsider who interferes in another’s marriage can be in some really hot water.  For decades, NC juries have awarded large sums to husbands and wives whose marriages were broken up by third parties.

Now, however, one plaintiff is trying to apply this old (many would argue outdated) law to very new technology — the dating-while-married website Ashley Madison, whose motto is “Life is short.  Have an affair.”  One North Carolina man is suing the website for alienation of affection and claiming that the online dating service aided his wife in finding her paramour.  Before any jilted spouses get big ideas about suing any person or business who facilitates or encourages an affair, however, they should know that the suit has little chance of succeeding.  For one thing, the legislature in 2009 passed an amendment that prevents spouses from suing businesses that play a role in extramarital affairs (hotels, restaurants, clubs…).  Plus, the website was merely a facilitator of the cheating, not the actual perpetrator.  If the plaintiff’s wife hadn’t met her boyfriend on Ashley Madison, couldn’t she have met someone on any other dating site?  Or any bar?

While this man’s lawsuit will most likely be dismissed, many North Carolinians successfully sue their cheating spouses’ lovers for alienation of affection.  In order to prove alienation of affection, they must show:

  1. That the couple was happily married and a genuine love and affection existed between them;
  2. That the love and affection was alienated and destroyed; and
  3. That the wrongful and malicious acts of the defendant caused the alienation of affection.

What do you think?  Is this type of lawsuit outdated?  Should we be able to sue those who facilitate or encourage the cheating, in addition to the actual person who does the cheating?

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New Year’s Resolution: Estate Planning

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Estate Planning

It’s hard to believe that we’re almost halfway through January already.  How many of us have already abandoned our New Year’s resolutions, after just two weeks?  How many of us forgot to make a resolution at all this year?  Here’s a suggestion for a resolution that will benefit both you and your family and will be relatively simple to complete:  make an estate plan this year.  We all know that it’s an unpleasant thing to think about — thinking deeply about your wishes for yourself, your family, and your property when you die.  Clients, however, seem to overwhelmingly feel great peace and satisfaction knowing that they have done their best to make things easier on their loved ones when that time comes.

To get started on the process, list and compile documents relating to your assets, insurance policies, properties, and valuable personal items.  Gather account and policy numbers.  Then talk with a financial planner and a lawyer about your needs.  In addition to a will, which handles most property, most people also need a living will, a power of attorney, and a health care power of attorney.

  • The living will declares that you wish to die a natural death and do not want extraordinary medical treatment or artificial nutrition or hydration to keep you alive.
  • The health care power of attorney appoints a person of your choice to make your medical decisions if you became unable to make them for yourself.
  • The power of attorney (a.k.a. durable power of attorney) gives a person of your choice the legal right to act on your behalf as your “attorney-in-fact.”

These documents can alleviate the stress on your family if you should become sick or incapacitated in the future, and they give you the reassurance that your wishes will be carried out.  If you or your family members have been through significant changes, such as a divorce, a new baby, or the death of a loved one, you may need to update or revise the estate documents that you’ve already made.  If you’ve been putting off thinking about these things, this is a new year’s resolution that is easy to keep and will give you great peace of mind!

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Social Security Benefits & Divorce

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Social Security Benefits & DivorceWith the arrival of a new year, some people in unhappy relationships begin to look toward a new beginning.  If you are considering divorce in 2014, you likely have lots of questions.  When it comes to financial issues, there are many things to consider in a divorce, and one important financial aspect can be easy to overlook — Social Security.

There are limitations on when and how much an ex-spouse may receive benefits after divorce.  According to the SSA, you can receive benefits based on your ex-spouse’s status if:

  • Your marriage lasted 10 years or longer;
  • You are age 62 or older;
  • You are not remarried;
  • Your ex-spouse is entitled to Social Security retirement or disability benefits; AND
  • Your benefit based on your own work record would be lower than your benefit based on your ex-spouse’s record.

As a divorced spouse, you may receive up to 50 percent of your ex-spouse’s full benefit.  You must have been divorced for at least two years in order to begin collecting benefits.  If you remarry, you cannot collect the ex-spouse’s benefits, unless and until your later marriage ends.  Also, if your ex-spouse dies, and you meet all of the criteria above, you may be able to collect “survivor benefits” of up to 100 percent of the ex-spouse’s benefit.

If you are considering divorce and uncertain about your financial options, remember that Social Security benefits may be available to you based on your spouse’s work record.  Spend some time perusing the SSA website and consult an expert if you have further questions about your circumstances.

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Book Review: It Doesn’t Have To Be That Way

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Book Cover

Laura Wasser is a divorce lawyer in California whose clients include a bevy of Hollywood celebrities, but don’t hold her association with Kim Kardashian (and now apparently, Khloe) against her.  I was skeptical of the advice of a divorce lawyer with clients who seem to marry and divorce as almost a hobby.  What would this Hollywood lawyer say that would have any relevance to my clients in North Carolina?  The answer is:  plenty.  In It Doesn’t Have to Be That Way:  How to Divorce Without Destroying Your Family or Bankrupting Yourself, Ms. Wasser gives wise, practical advice about how to move through the process of ending your marriage without ruining your life or your children’s lives.

Wasser’s book is not about dishing celebrity dirt — it’s about her advice on moving through each stage of the divorce process.  She pays special attention to keeping the process as cost-effective as possible and helping people reframe the way they see their fading relationships.  She is matter-of-fact, and although I suspect that nobody would agree with everything she says about relationships (I don’t!), her insight is valuable.  She is especially good when talking about co-parenting with an ex (or several exes), since she is open about her own experiences raising kids with two exes.  Among the topics Wasser covers in the book:

  • Knowing when you should divorce
  • Separating
  • Finding a lawyer
  • Custody
  • Spousal support
  • Child support
  • Dividing assets and liabilities
  • Settlement

California law is quite different from North Carolina divorce and family law in some respects.  Wasser nevertheless does a good job of addressing the divorce process and what to expect in a way that does apply to North Carolina families.  I recommend this book to those thinking about divorce or already in the middle of the process.  Not every piece of advice in the book will apply to each person’s situation, and North Carolina law differs in some ways from what she discusses, but overall this is a good primer on how divorcing works, how you can manage it, and how you can thrive when it’s behind you.

*Note: This book is available in my firm’s library for clients to borrow as needed, along with other books on divorce and family law issues.

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