Tag Archives: Family law

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.

 

Keeping Text Messages for Court

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Texting and Family Law

If you have been involved in a family law case (especially a custody dispute or a divorce where infidelity is an issue), your lawyer has probably talked to you about the importance of documenting everything.  I generally think, the more information you can gather, the better.  Yes, it will take some time for you or your lawyer to sort through stacks of details about your life looking for the relevant statements, dates, events, and documents.  Yes, it is a difficult way to live — cataloguing proof or otherwise documenting every little thing that happens that might have an impact on your case.  But when it comes to your property and especially your children, I like the “better safe than sorry” approach.

In some co-parenting situations, calm and effective communication can be difficult.  These parents often resolve to communicate primarily through email and text messages.  We all know how to keep an email as documentation of communication, but how do you keep a text message for use as potential evidence in court?  Here are a few options for documenting communication by text message:

  • Take screen shots of the messages:  search online to find out how to take a screen shot of exactly what appears on your particular type of phone; save the image and print it out to keep or show your lawyer;
  • SMS Backup+:  this is a free app for Android users that automatically backs up your text messages and phone log to your Gmail or Google calendar;
  • Email My Texts:  this is another Android app that costs $4.90 to download and allows you to email, print, and save all of your text messages, as well as export them to a number of other services, like Dropbox or Evernote;
  • iPhone users:  unfortunately, there doesn’t seem to be a reliable app to simply backup or email your iPhone texts like the Android users have; check out this article for advice on how you can keep and access the files that archive your text messages.

Unfortunately for iPhone users, it seems to be a bit more work to document text message conversations than it is for Android users.  With an important issue like custody on the line, though, it will likely be worth it.  Talk to your lawyer about what types of information and communication you should be documenting, and stay on top of it!

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Do I Really Need a Divorce Lawyer?

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Divorce Lawyer

Callers to my office ask this question pretty regularly.  People seem confused about when and whether they need a lawyer to help them through their divorce.  This is a fair question, given the proliferation of online sources for legal forms, documents, and information.  There are lots of places to research your questions, but you also risk “information overload.”  What if different websites seem reputable, but give conflicting information?

The first thing to remember if you research divorce law on your own is that divorce and family law issues are governed by state laws.  So while general information might be a good place to start, focus your research on your state’s law.  An article or blog post about divorce procedures in Nevada will not be very helpful in assessing your North Carolina divorce case.

In some cases, the spouses can certainly negotiate a settlement between themselves, without the input of lawyers.  When is this possible?  It truly depends on each individual case, but generally:

  • The shorter the marriage, the easier it may be to handle alone, because alimony is less likely to be an issue.
  • Few assets and no real estate holdings make it easier to split up without lawyers, because there is less physical “stuff” to fight over.
  • When there are no children involved, and thus no custody and child support issues involved, you may be able to handle things yourself.
  • If you and your spouse are friendly and cooperative enough to negotiate fairly between each other, then you may not need to involve lawyers.

If any ONE of the statements above does not apply to your case, however, then you would be wise to at least consult with a lawyer.  The more complicated your situation is, the more likely you are to need legal guidance and representation.  Ask yourself whether hiring a lawyer would add value to your case — would the financial, time, or peace of mind benefits outweigh what you spend on a lawyer?  When you have children, large assets, retirement savings, or own your own business, the answer is likely “yes.”

Gray Divorce

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Gray DivorceAccording to this New York Post article, the divorce rate for those over 50 has risen from about 10 percent in 1990 to 25 percent today.  The phenomenon is widespread enough that it even has a name:  “gray divorce.”  Experts theorize a number of reasons that this might be happening:

  • Longer, healthier life spans lead older people to believe there’s still time to start over
  • Older people are more likely to be on their second or third marriages, which are more prone to divorce
  • Higher expectations for marriage
  • Perception that it’s easier to get divorced than it was in the past
  • Less sense of shame about divorce makes couples less inclined to “stick it out” after the children have left the home.

Whatever the reasons for the trend, there are unique considerations that attorneys and their “gray divorce” clients should take into account.  Unlike many younger couples, for whom custody and child-rearing issues are often paramount, for older divorcees the most important issue is often assets, and the strategic division of those assets is very important for their retirement years.  It is important to divide pensions, insurance policies, and real estate, while hopefully ensuring that each spouse will have money to live on in the “twilight years.”

For couples with fewer assets, divorce can cause financial strain that may mean one or both spouses become partially dependent on their children or the government.  Couples over 50 are more likely to have estate planning already in place as well.  If so, it may be necessary to revisit wills, life insurance, trusts, bequests, and other end-of-life documents to ensure that assets and decision-making power will still be distributed according to each ex-spouse’s wishes after divorce.

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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.

Stepparents and Child Support

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Stepparents and Child Support

Lots of parents and stepparents in North Carolina wonder whether the stepparent’s income affects the amount of child support that is owed.  For example, if dad remarries a woman who has quite high income or assets, will it mean that he is obligated to pay more in child support?  If he cannot or does not pay for some reason, can his new wife be required to pay child support on his behalf?

In North Carolina, stepparents have absolutely no duty of support to stepchildren.  The obligation of a stepparent depends on whether the stepparent voluntarily act in loco parentis, which means in the place of a parent.  Someone who is acting in loco parentis “has assumed the status and obligations of a parent without a formal adoption.”  This is reviewed on a case by case basis, and the question is whether the stepparent intended to assume such obligations toward the stepchild(ren) as support and maintenance.

Even if a stepparent has assumed the obligation of paying support, that obligation usually ends if the stepparent and parent get divorced.  A stepparent may sign a notarized agreement to pay child support, and that agreement would be enforceable even after divorcing the child’s parent.  Even then, however, the stepparent’s obligation to support the child would still be secondary to the child’s legal parents.  Courts can only order the stepparent to support the child if the natural parents are unable to provide any support or the needs of the child are greater than the abilities of the natural parents to provide.

Contributions of a third party (stepparent) may be used to support a deviation from the NC Child Support Guidelines.  This generally requires that the parent who receives the child support on behalf of the child has a higher burden to prove the actual expenses of the child and how much contribution is made by the stepparent.  This is quite unusual, but possible.  The bottom line, however, is that as a rule, a stepparent has no obligation to pay support for his or her stepchildren.

Types of Adoption in NC

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Adoption in NC

Thanks in large part to the internet and social media, many of us have the experience today of keeping up with the adoption journeys of friends and family members all over the country.  Like many other family law issues, however, adoption laws and practices vary from state to state.  So people often wonder what types of adoption are available to us in North Carolina.  There are a number of adoption options available, but the most common types of adoption in NC are private and agency adoptions.

Private Adoption

Private adoptions in NC involve placing the child directly from the biological parent(s) (or other placing party) to the adoptive parent(s).  In a private placement, the biological parent will receive a copy of the adoptive parent’s preplacement assessment (home study).  Thus the biological parent will know the adoptive parent’s identity and the detailed information contained in the preplacement assessment.  Private adoptions can take place within North Carolina or between states.  In an interstate adoption, the Interstate Compact on the Placement of Children sets out further requirements that the parties must meet.

An “adoption facilitator” is a person or non-profit entity that assists biological parents in locating and evaluating prospective adoptive parents.  These facilitators are not licensed in North Carolina and may not charge the biological parents for their services.  Placements that are assisted by an adoption facilitator are generally private placements.

Agency Adoption

An agency is an entity that is “licensed or otherwise authorized by the law of the jurisdiction where it operates to place minors for adoption.” N.C.G.S. § 48-1-101(4).  A county’s Department of Social Services also qualifies as an agency under this statute.  In an agency adoption, the agency places the child with the adoptive parent, and the adoption may be either open (identities of the biological and adoptive parents are disclosed) or closed.  Agency adoptions can occur within North Carolina, between states, or internationally.

International Adoption

International adoption is another option for North Carolina families.  Usually the adoption is finalized in the country where the child is a citizen, and it may be refinalized after the family returns to North Carolina in order to obtain an NC foreign birth certificate.  International adoptions require compliance with the laws of the child’s country of origin, as well as immigration laws and the laws of North Carolina.  International adoptions are typically the most expensive to pursue.

There are several other types of adoption available in North Carolina, such as stepparent adoption and surrogacy.  There are many resources online to help you start researching what type adoption would best fit your family.  Check out NC Kids Adoption and Foster Care Network, this list of agencies licensed in NC, and state statutes on adoption and child welfare to get started.

Legal Separation in North Carolina

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Separating from spouse

People often seem to be confused about the process of separating from a spouse.  The requirements for marriage, divorce, and other family law matters are determined by state law, rather than federal law.  Therefore, the laws on these issues vary dramatically from state to state.  Movies, media, and even the experiences of friends in other states therefore often mislead and confuse people about how to legally separate from a spouse in North Carolina.

In North Carolina, in order to get an absolute divorce on the grounds of separation (which is most common), a couple must have been separated for a period of one year.  There is no need to prove fault or obtain a court decree.  Separation simply means that the couple physically lives separate and apart — not under the same roof.  At least one of the parties must intend to cease cohabitation — the intent of the other spouse is irrelevant to the claim.  In North Carolina, there is no need to show that both parties agreed to the separation or to have a decree of the court declaring that they have separated.  After a year has passed since the couple stopped cohabiting, either party can secure an absolute divorce upon proof that the couple has been separated for the statutory period of one year.  Once that is proven, neither spouse can contest the divorce, as long as all other technical requirements have been met.

Even if you have been separated for a year, however, talk with a lawyer before filing for absolute divorce to ensure that you do not forfeit any important claims that may be available in your case.

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The Right Questions to Be Asking in Family Law

Click the link above to read a to-the-point article that gives smart advice about questions that you might be pondering if you are going through a divorce, especially with kids.  Be sure to brainstorm and keep a list of important questions and topics that you want to review with your lawyer before your next meeting.  Lawyers can’t read minds — if an issue is important to you, bring it up so that we can help you address it.

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How to Help Your Attorney Help You in Family Law

This is a really insightful article from About the Children with really smart advice about how to work with your lawyer to make things go as smoothly as possible in your case.  The keys to a good, productive attorney-client relationship are respect and honesty.  Making sure your attorney has all of the information he or she needs, even if it could be damaging to your case, is very important.