Tag Archives: Law

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.”

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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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.

Wrapping Up on Snooping: Nanny Cams

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Nanny CamsTo wrap up this series of blog posts on spying on your spouse, let’s talk about “nanny cams.”  The use of secret video recording, or at least discussion of it, is prevalent today.  You might be wondering then, given all of the legal limitations on other forms of snooping that we’ve discussed, how nanny cams can be legal.  Using hidden cameras, however, does not in fact violate the wiretapping statutes that we have addressed in other blog posts.

The use of nanny cams is in fact permissible, because the rules about video recordings are different from rules about voice and telephone recordings.  Our federal and state wiretapping laws only apply to the interception of oral communication.  This is why nanny cams (the legal ones, anyway) do not have audio recording features.  It is generally okay to record video without an audio feed in your own home, without the consent of the person being video taped.  If you own the property, or have permission from someone who owns the property, it is most likely permissible to place an inconspicuous video recorder to determine what is going on in your home.

Summing Up:  Snooping on Your Spouse

We have addressed a number of ways in which you might be legally able to check up on your spouse’s activities.  With all of the technology available to us today, it is easy to indulge your insecurities or give in to your suspicions and start checking up on your loved one.  Sometimes snooping is reasonable and warranted; sometimes it is unjustified and invasive.  Just because you could legally snoop through some of your spouse’s communications, does not mean that it is the right or healthy thing for you or your relationship.  Before you start spying, think it through — what are the likely effects on you, your family, and your relationship if someone (especially your spouse) finds out that you distrust your spouse enough to start snooping?

Snooping should only be undertaken with care, from both a legal perspective and a personal one.  Legally, there are limitations and complex considerations involved with some types of snooping.  To be certain that you do not violate federal or state statutes and expose yourself to civil or criminal liability, it is always best to talk with a lawyer before spying on your spouse.  Also, just because a method of getting information is legal, does not mean that the information you gather can be used in court.  So take into consideration whether the breach of trust will be worthwhile if you cannot prove in court what you find out from snooping.  Finally, consider your personal well-being and the strength of your relationship.  If your gut is telling you that even legally permissible snooping is a bad idea in your situation, listen to it!  Think honestly about the source of your doubts and how you and your partner can address them…and hopefully avoid the need for a divorce lawyer altogether.

Facebook Snooping

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Snooping

It seems like everyone is on Facebook today, doesn’t it?  Your spouse probably is.  Your wife’s high school boyfriend might be.  Your husband’s buddies who know what went on at that Vegas bachelor party are.  Between the chat function, private messages, and reckless over-sharing status updates, there is vast opportunity to find information that your spouse or opponent might not want you to know.  So, if you are involved in a separation, divorce, or custody dispute, can you snoop in the opposing party’s Facebook account?

Public Posts

The information posted on your spouse’s Facebook “wall” that is readily visible to you and his or her other Facebook friends, is fair game.  There is no expectation of privacy in these types of posts since they are put on a public forum for everyone to see.  If an incriminating post or picture appears, print it out and show it to your lawyer.  The printout may or may not be admissible in court, but you and your lawyer will at least have it to consider.

Private Chats and Messages

When it comes to private chats and messages on your spouse’s Facebook account, it is a bit more difficult to know whether you might be violating the law.  This is a Title II question and ultimately comes down to authorization.  Your ability to legally access the Facebook activity depends on whether, and to what extent, your spouse has authorized you to access his or her Facebook.  We’ll address the issue of authorization in more depth in terms of accessing your spouse’s emails, but when it comes to Facebook, if your spouse knows and has given you permission to log on to her Facebook account in the past (and has not since changed the password), then you probably would not be violating the wiretapping statutes by logging in and looking around.

If, however, you simply know your spouse well enough to guess her password or correctly answer her security questions, then your access is unauthorized and illegal.  Using a spyware program that tracks chats, messages, or passwords is also illegal.  Thus, the safest course is to limit your snooping to the public posts of your spouse or anyone else you suspect of improper behavior.  Immediately print out any important information you find, since it could be deleted later. If you are not sure whether you can legally access your spouse’s account, err on the side of caution and don’t look.  Talk with your lawyer about Facebook (your account and your spouse’s), and be prepared to answer truthfully questions about access to both accounts.

Separated Spouses and Sex, Part 3

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Custody

             When a judge is deciding on custody issues in North Carolina, the standard he or she must consider is always the “best interests of the child.”  It is no different when it comes to the sex lives of the child’s separated parents – the question is whether the parents’ sexual relationships are affecting the best interests of the child.  So, sex during separation can certainly have an effect on custody if it impacts the child.  This will depend on the circumstances of the relationship.  If a parent, for example, engages in sex with numerous partners while the child is in the home, it would not be surprising for a judge to decide that the parent is not acting in the child’s best interests.  Circumstances vary, but especially when your kids are involved, it is wise to err on the side of caution.  During the separation period, the safest course is to keep any sexual activity confined to times when your child is staying at the other parent’s house.  Being responsible and aware of what your children see is both good for your kids, and good for your custody case.

Discovery & Court Testimony

             Discovery is the process of both sides gathering information before a court proceeding.  This is done through interrogatories, which are written questions that require written answers, and depositions, which are out of court testimony under oath.  Depositions usually take place at an attorney’s office, and a court reporter is present to make a transcript of the testimony.  In family law cases, questions about the parties’ sexual relationships are common in both discovery and court proceedings.  As we’ve seen during this discussion of sex during the separation period, sexual behavior can be relevant to multiple issues during divorce and custody proceedings.  Opposing attorneys might also ask intimate questions to put you on the defensive.  Thus, sexual and relationship questions are likely to arise during your case.  As unfair and invasive as it may seem, your personal life is not necessarily private during a divorce, so you and your lawyer must be prepared to face questions about your behavior, possibly from both a judge and the opposing party.

Bottom Line:  Should I, or Shouldn’t I?

             So, over the course of three posts, we’ve addressed a number of issues that can arise from having a sexual relationship while you are separated from your spouse.  Divorce is complicated – emotionally, financially, and legally.  Be honest and realistic with yourself about this issue:  sex will most likely make your divorce process even more complicated.  Understand and consider the consequences that can follow from your decision.  Emotions run high during divorce, and moving on too quickly can make it more difficult to resolve the issues that you and your spouse face.  Your best bet is to focus your energy on getting through the separation and resolving the remaining issues of your marriage; save the dating and sex for after the divorce.

Separated Spouses and Sex, Part 1

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            This is the first post to the Hickory Family Law Blog, so let’s jump right in with a common and controversial topic:  when is it okay to have sex after you separate from your spouse?  This issue comes up often as people transition from married life back to being single.  Dealing with the hurt and pain that usually accompanies divorce, in addition to the practical issues like finances and custody, makes this is a tumultuous time for many people.  North Carolina requires a one-year separation period before spouses can file for absolute divorce.  During this separation period, it is not unusual for one spouse to want to hold on to the marriage, while the other is ready to move on with life and begin dating again.  It is important to know that sex during the separation can cause many problems and can have a negative effect on your divorce.

Sex With the Ex

            Under the North Carolina statutes, isolated instances of sex with your separated spouse do not constitute a reconciliation that would cause the one-year separation period to start over again.  Resuming a regular sexual relationship (as opposed to isolated incidents), however, can be one factor a court would consider in deciding whether a couple has “resumed the marital relationship,” thus restarting the one-year period.  While you and your spouse may want and mutually decide to reconcile, be aware that resuming a sexual relationship with your separated spouse may have an effect on when the court finds that you were legally separated from your spouse for purposes of post-separation support, divorce, and equitable distribution if the reconciliation is not permanent.  With all of the other complicated emotional, financial, and legal issues involved in separation and divorce, having sex with your ex can make things significantly more complicated and confusing.  It is important to think about the consequences for yourself and your divorce proceedings before resuming a sexual relationship with your separated spouse.  If it has already happened, or you are considering reconciliation, talk with your lawyer about the effect your choices can have on your case.

Criminal Adultery

             Now that we have addressed having sex with the person from whom you’re separated, let’s talk about sex with other people.  Under North Carolina law, having sex after separation, with someone other than your spouse, constitutes the crime of adultery.  Believe it or not, North Carolina General Statutes § 14-184 makes adultery a Class 2 misdemeanor.  Enforcement of this statute is rare, but it is common for sex during separation to affect negotiations and lawsuits.  A relatively amicable divorce proceeding can turn nasty very quickly if one spouse finds out that the other has already begun a sexual relationship with another person.  This can cause resentment and bitterness that may encourage the “left behind” spouse to be more difficult in negotiation and legal tactics.  While this law is rarely enforced, committing adultery does mean that you risk having a criminal record, which could impact your job, your custody case, and the judge’s perception of you.  While you are separated, it is important to conduct yourself in a manner that will not reflect poorly on you in the eyes of a judge whose decisions have significant impact on your future.