Category Archives: Uncategorized

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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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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Dial 2-1-1

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This isn’t specifically a family law topic, but it is definitely a resource that could be helpful to many families in crisis.  Thus, I thought I would share some information that I learned this week.  I had no idea that this resource existed, so please forgive me if you are more clued-in than I.  We’ve all heard of dialing 311, 411, and of course 911.  Did you know that dialing 211 in Catawba County and counties across the state will connect you to a multitude of resources in the community?  The United Way of North Carolina is the state sponsor of the service, and the organization and its local partners provide callers with access to a vast network of NC community health and human service resources.

As you can see from the brochure snapshot above, the service helps connect callers (and visitors to the website) to organizations that can help provide basic needs like food pantries, counseling, senior services, smoking cessation resources, and even volunteer opportunities.  As the website states, “the first step in finding help is knowing who to call.”  The phone line is free, confidential, always open, and available in other languages.  We are fortunate to have this resource available here in Catawba County, as well as the surrounding counties — Burke, Caldwell, Alexander, Iredell, and Lincoln counties are all covered as well.

This holiday season, if you find yourself (or someone you know) in need of resources from heating assistance to transportation to child care, calling 211 or visiting nc211.org is a good way to start looking for help.  Also, if you’re looking for a way to get involved in the community and volunteer during the Christmas season and beyond, you can find local organizations looking for assistance at 211 as well.  Please help spread the word that this valuable resource is available to North Carolinians!

Ten Tips for Holiday Co-Parenting

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Holiday Co-Parenting

For newly-separated or divorced parents, the holidays can be especially tough.  For kids with two households, this time of year means lots of shuffling back and forth, possibly feeling torn between parents, extended families, and old traditions.  Adjusting to life after separation takes its toll on everyone around the holidays:  kids, parents, grandparents, in-laws, and friends.  Here are some ideas to make the holidays easier for you and your kids after separating:

  1. Start your planning for the season by rereading your parenting or custody agreement — what do its provisions on holiday scheduling say?  Who is scheduled to have the children and when this year?  Whether it is very specific or leaves some room for compromise, know what the agreement says, because it is your fallback if you and your ex disagree about the holiday schedule.
  2. Accept that your request to change the arrangements in the custody agreement is just that — a request.  Be prepared for the other parent to say “no” if your plans don’t fit with their scheduled time.  Compromise is great, but each parent is within his or her rights to make plans and stick to them for their scheduled parenting time.  Don’t punish each other for making holiday plans and wanting to keep them.
  3. Schedule a time to discuss each parent’s holiday priorities calmly and without the children around.  Think about what events are most important to you (and the kids) and talk calmly with your ex about how you can coordinate the schedule to make as many of those important events as possible happen this year.  Again, be prepared to give as much consideration as you get.  While you’re talking, go ahead and coordinate on the kids’ Christmas lists too — who will give what to whom?
  4. Compromise is the name of the game in co-parenting generally, and particularly during the holidays.  This time of year is all about family togetherness, and that can get very sticky when children now have two families.  The most constructive solution is to remember to make the children the focus and show them how you and your ex can work together to make sure that everyone still has a good time.
  5. Don’t negotiate the schedule in front of the kids.  Particularly if the separation is new, parents can easily get emotional and territorial about sharing the children this time of year.  It’s hard on kids too, so make it easier by shielding them from the discussion.  Work out the schedule between the two of you (and your significant others, if applicable), and present a united front to the children about the holiday schedule.
  6. You are the parents, you determine the schedule.  Don’t ask your children to choose which house or family they prefer on certain days — that puts them in the middle and tests their loyalty to each side of the family.  You know your kids and which events mean the most to them.  Work together to decide where and when they will spend time with each of you.
  7. Be flexible with the way you think about holidays.  If the kids are going to be travelling with your ex on Thanksgiving Day, plan to fix all of their favorite Thanksgiving recipes from your side of the family and celebrate on Saturday when they are back with you.  Be open to celebrating Thanksgiving, Christmas Eve, and even Christmas day on alternative days rather than the “day of” when the kids are with their other parent on the actual day.  The kids probably don’t care about the actual date, they’re just happy to celebrate again with you.
  8. Make new traditions that the children will remember and look forward to.  Change is inevitable after divorce, and some beloved traditions may no longer work for your family.  Look for ways to incorporate new traditions for everyone to cherish.
  9. Make plans for your time without the kids.  When your children are with your ex on a holiday, you could certainly be forgiven for feeling lonely and bitter.  Don’t sit alone and stew, make plans to spend the holiday with friends and family.  Of course you’ll miss your children, but try to look at the day as an opportunity to reconnect with your other loved ones, free from the distractions of looking after the kids.
  10. Be gentle with yourself and your family — adjustment is hard and takes time.  Again, holidays are about family, and it is just plain old hard sometimes to adjust to sharing your family.  Remember that it’s probably just as hard for your ex.  Give yourself some leeway if you get frustrated or lash out.  Apologize, move on, and stay focused on the children.
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New to NC…and Divorcing

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North Carolina divorce

It’s a pretty common scenario:  spouses living in another state decide to separate, and one or the other heads to North Carolina to be near family, a new job, the epicenter of college basketball, awesome bbq, beautiful mountains and beaches…there are lots of reasons to move to NC!  Whatever brings the spouse here, they often have some questions about how to proceed with the divorce:  Do we file for divorce in NC or the state where we lived together?  What do I have to do to get divorced in NC?

In North Carolina, by statute you must have lived in the state for at least six months as of the day you file your divorce complaint.  So, if you have recently come here from another state, you cannot file for divorce here under North Carolina law until you have lived here for six months.

You will also need to know that in North Carolina, obtaining a no-fault divorce requires that you and your spouse be separated for one year (actually technically a year and a day).  This means that you must be living under a different roof, with the intent to stay separated forever, for one full year before you may file for divorce.  So if your spouse still lives in the other state, it might be wise to check into the divorce laws there and see how the process compares to North Carolina.  If you have questions about where and how to file for divorce, call a family law attorney to talk about the specifics of your case.

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Coping with Parental Alienation

Parental alienation is behavior by one parent in a hostile co-parenting situation that causes “a child to be mentally manipulated or bullied into believing a loving parent is the cause of all their problems, and/or the enemy, to be feared, hated, disrespected  and/or  avoided.” (See www.paawareness.org for more info.)  Unfortunately, this damaging behavior is probably more common than most of us would expect.  Parents who are on the receiving end of this type of behavior can face very difficult circumstances.  Click the link above to read an article with thoughtful tips to help parents deal with parental alienation.

Cohabitation in NC

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CohabitationCohabitation has become more common and more accepted in today’s society.  Statistics vary, but some sources claim as many as 60 percent of couples today live together before marriage.  People of different generations, backgrounds, and beliefs could argue all day about whether cohabitation is a good thing or not.  In the end, though, the practice is widespread enough that it is important for unmarried couples to think about the legal options and consequences when they decide to live together.

First off, the North Carolina law that made unmarried cohabitation illegal was struck down as unconstitutional by a superior court judge in 2009.  That decision is not necessarily binding on the whole state, however, so cohabitation may still technically be illegal.  It is unknown so far what other state courts would say on the matter, but the law against cohabitation (passed in 1805) is very unlikely to be enforced.

North Carolina does not recognize common law marriage, and there is no “legal status” associated with unmarried cohabitation.  Thus, a couple who lives together for many years and then breaks up, is still not usually entitled to the remedies associated with divorce:  equitable distribution of property and alimony.  Property is simply divided according to who owns title, and dividing personal property (i.e. furniture and valuables) can of course become very difficult for those whose lives and money have become so intertwined.

So how can cohabiting couples protect themselves and plan for the future?  First, don’t be afraid to talk about these issues before moving in together.  If you’re close enough to live together, you’re close enough to talk about protecting yourselves and each other financially if things end poorly.  Think of this just like betrothed couples discussing a pre-nup — it’s unpleasant to think about, but in some cases essential to protecting your interests.

Second, unmarried couples in North Carolina are free to make contractual agreements to establish rights and obligations should the relationship end.  So although unmarried couples are not granted the rights associated with marriage, they can make express agreements about dividing property in the event of a break-up, and the agreements will be honored by courts (as long as they are not based upon sexual services).  Before acquiring any substantial property interest together, it is very wise to make a written agreement about what would happen to the property if the relationship ended.  It may be a touchy subject, but it’s much easier to reach an agreement when you’re on good terms than it will be if things go south.

Note:  North Carolina still does not recognize same-sex marriage, so this advice applies to same-sex couples who consider themselves married, as well.  Although the law denies the privileges and rights of marriage to same-sex couples, there are ways to secure some of those rights through contract before (and after) joining your lives together. Goodness knows it’s not romantic, but it’s important!

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Be Careful About What You Remove From Social Media, Too

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Social Media Perils

There is a seemingly endless stream of problems that can arise from social media and technology when it comes to divorce and family law.  If you have spoken with a family lawyer lately, you likely heard a warning to be very careful about what you put on the internet.  That is an important rule of thumb always, but especially if you are involved in a divorce or custody case.  It is also important to be careful about how you search for information about the activities of a spouse or others.

This is becoming such an important topic that a few hundred North Carolina family lawyers recently met in Greensboro specifically to learn about the criminal and civil liabilities that can arise for ourselves and our clients from various digital activities.  The program addressed a number of the topics, some of which I’ve addressed in earlier blog posts, but one important additional topic is “spoliation.”  Spoliation of evidence is the legal term for when someone deletes or destroys evidence that is potentially relevant in a case.

If a party in a divorce or other family law matter intentionally deletes social media posts, for example, because they might be damaging to the case, that person might be guilty of spoliation.  The party, and his or her lawyer if the lawyer advised it, can be sanctioned or otherwise in trouble with the court.  At the beginning of a case, a lawyer will often send a “spoliation letter” to the opponent or anyone else who has relevant evidence, warning them to preserve the evidence that must be turned over.  This is another reason to be very cautious about what you share online — you may not be able to delete it in the future without causing significant problems.

So, if you are concerned about things you may have posted online in the past, be very careful about “cleaning up” your Facebook page or deleting old Tweets and emails.  You may cause yourself bigger problems if you get caught destroying evidence.  Think twice before you post anything online, and if you are in the middle of a case and are worried about your social media presence, talk to your lawyer about your concerns.