Batch, Poore, & Williams, PC law firm in Raleigh is where clients come first. BPW's Raleigh divorce blog on frequently asked questions we encounter servicing clients in Raleigh, Wake County and surrounding areas.
A juvenile emancipation is a legal mechanism that frees a minor child from control of his or her parents. It also frees the parents from certain responsibilities and obligations to the child.
What Does it Do?
An emancipation allows a child to freely conduct business as if he or she is an adult. An emancipated minor can enter into contracts, buy and sell property and become a party to a lawsuit. An emancipated minor can also consent to his or her own health care treatment.
An emancipation also relieves the child’s parents of all legal obligations, such as child support.
What Does It NOT Do?
An emancipation is not the same thing as a termination of parental rights. The child’s parents remain the child’s legal parents. Despite emancipation, the child may still inherit from his or her parents.
An emancipation does not allow an exemption for age-based restrictions. For example, an emancipated child in North Carolina may not buy tobacco until age 18 and may not buy alcohol until age 21.
How Can You Become Emancipated?
1. Get Married
North Carolina allows minors to marry under certain circumstances. Marriage under these circumstances qualifies as an emancipation.
2. Court Order
A Court may enter an order of emancipation. Once it is entered, the order is irrevocable.
Who Can File?
Any 16 or 17 year old who has lived in the same county or Federal territory in North Carolina for six months before the action is filed.
What Happens Once an Action is Filed?
The Court will hold a hearing. Both sides will be able to present evidence and cross-examine witnesses. It will be up to the minor child (the petitioner) to prove that emancipation is in his or her best interest. The Court will look at the following factors to decide if it is:
The parental need for the earnings of the minor;
The minor’s ability to function as an adult;
The minor’s need to contract as an adult or to marry;
The employment status of the minor and the stability of the minor’s living arrangements;
The extent of family discord which may threaten reconciliation of the minor with the minor’s family;
The minor’s rejection of parental supervision or support; and
The quality of parental supervision or support.
To issue a final decree of emancipation, the Court must find the following:
That all parties are properly before the court or were duly served and failed to appear and that time for filing an answer has expired;
That the minor has shown a proper and lawful plan for adequately providing for his or her needs and living expenses;
That the minor is knowingly seeking emancipation and fully understands the ramifications of the act; and
That emancipation is in the best interests of the minor.
If you are seeking or defending against an emancipation, you should speak to a family law attorney who is knowledgeable in this area of law. Contact us today to learn more about how to prepare your case!
In December 2017, a new law affecting alimony across the country was enacted. The changes went into effect on December 31, 2018. Read on below to find out more about what the changes are and why they matter to your alimony case.
What are the Changes?
The Tax Cuts and Jobs Act (TCJA) made a few changes to how alimony payments are taxed in America. Before the change, alimony payments were tax deductible for the supporting spouse. The dependent spouse had to count money received as income. Thus the dependent spouse had to pay taxes on the money he or she received and the supporting spouse received a tax break.
For anybody entering into an alimony agreement on or after December 31, 2018, those tax rules no longer apply. Instead, the supporting spouse cannot count the payments as tax deducible. And the dependent spouse doesn’t have to count the money received as income anymore.
Why Does it Matter?
At first glance, this might seem like good news for the dependent spouse. But tax deductions made alimony payments more affordable. They increased the supporting spouse’s “spending power” so to speak. Without that increased “spend power,” we expect negotiating alimony will become much harder. Without a way to offset payments, supporting spouses won’t want to offer as much in alimony.
If negotiations do not work, the dependent spouse can always have his or her alimony claim heard in court. Judges will still have discretion in awarding alimony amounts. But judges have to look at the supporting spouses “ability to pay.” Not having that tax break anymore will definitely affect a spouses ability to pay.
On a side note, if you entered into an alimony agreement before December 31, 2018, the new rule does not apply to your situation. But if you make any modifications to the agreement after December 31, 2018, you can elect to have the new rules apply.
Ultimately, the new law creates even more complexities in North Carolina alimony cases. That’s why it’s important to speak with a knowledgeable attorney about these issues. Contact us today for more information about your alimony case.
It’s smart to make a budget when you’re thinking about separating. Once you separate, your family will have the same amount of income but twice the amount of expenses. There will be two mortgages (or rent payments), two power bills, two water bills, etc. Knowing ahead of time what your new income and expenses are is helpful to avoid increased debt.
If your case involves spousal support, a budget is necessary for your case. Wake County local rules require each party to turn over a financial affidavit. If you’re petitioning for spousal support, your financial affdiavit is due 30 days after you file your claim. If you’re responding to a claim for spousal support, your financial affidavit is due 45 days after you’re served with your spouse’s complaint.
Below are some tips and tricks to creating a budget that works for you:
1. List All Income Sources
Write down your after-tax, monthly income. If you receive income from other sources besides your employer, write those down as well. Examples include, social security benefits, contract work, rental income, trust money and monetary gifts.
2. List All Mandatory Expenses
Mandatory expenses are expenses you must pay each month without fail. These core expenses include, but may not be limited to, rent, power, water and phone.
3. List all Voluntary Expenses
These are the rest of your expenses. You should have a bit more discretion with these. For instance, food and gas bills can fluctuate each month. It’s also possible to pinch pennies in these categories. Likewise, your savings and any voluntary retirement deductions from your paycheck should go in here.
Take a look at your last three month’s bank and credit card statements to get an “average” monthly expense for each category of voluntary expenses.
4. Subtract Expenses from Income
Make sure your income – expenses = zero. This way, you know you are giving every dollar a job. This cuts down on “guesstimating.”
5. Take a Look at Our Financial Affidavit Worksheet
If you’re a victim of domestic violence seeking a domestic violence protective order, the process can be long, tedious and intimidating. While Wake County provides instructions on how to complete this process, those who aren’t familiar with finding and filling out forms on the NC Courts Website might find the process confusing.
Although you can get the required documents by heading over to the Domestic Violence Office in the Wake County Courthouse, you can save yourself significant time by gathering information and filling it out in advance.
Key information you will need in completing the Domestic Violence Protective Order filing under Chapter 50B:
Name and Address of the Defendant
Defendant’s work address and contact information
Descriptive Information about the Defendant (Age, Height, Weight, Distinguishing Marks, Car make and model)
Information Regarding Minor Children (DOB, Last 5 addresses)
There are several forms you will need to complete in filling, some of which are not available online. For our convenience, we’ve provided links to the required forms:
After the documents are processed, if you’re seeking an emergency ex parte order of protection, you will be called into Court to make a statement under oath about the facts alleged in the complaint. If the Court finds that there is a danger of acts of domestic violence against you or your minor child, the court may enter an emergency ex parte order without notice to the defendant. The Court can enter a temporary custody order ex parte, prior to services and notice to the defendant if the child is exposed to a substantial risk of physical or emotional injury, or sexual abuse.
We proudly and vigorously represent clients who are victims of domestic violence. In many cases however, domestic violence victims are not able to afford an attorney to advocate for them. We hope that this article will assist victims in getting help and protecting themselves and their families from further harm, regardless of whether they are seeking representation.
We offer free consultations to victims of domestic violence. If you’re seeking legal assistance or have questions about how to proceed, contact our office today.
Batch, Poore & Williams partner Sydney Batch has been recognized by Super Lawyers as a Top Rated Family Law attorney in Raleigh, North Carolina. We are honored and excited that Sydney has been recognized as one of the top family law attorneys in North Carolina as a result of her hard work and dedication to North Carolina families during her 13 years of practicing law.
Sydney is one of the founding partners of Batch Poore & Williams, PC. Sydney Batch grew up in Chapel Hill, North Carolina. As a triple tarheel, Sydney received her Bachelor of Arts in English, a Master of Social Work and a Juris Doctor from the University of North Carolina at Chapel Hill. The combination of her dual degree in law and social work provide her with a unique understanding of the often intersecting worlds of law and social work. Her primary practice areas are family law and child protective services Sydney is certified as a Child Welfare Law Specialist and is the newly elected Representative for NC District 37 in the North Carolina House of Representatives.
Have you worked hard during your marriage and saved a significant amount in a 401k retirement plan? Does your employer offer a pension plan? Did your spouse not have significant retirement assets due to mismanagement or waste of assets during the marriage? Is there anything that can be done to preserve your hard earned retirement assets?
As part of your divorce, any marital property will be divided. In North Carolina, absent certain factors, marital property is split 50/50. Depending on the facts, all or part of your retirement account will be classified as marital property.
But how do you decide the value of the marital portion of your retirement account? Once you value it, how does it get distributed? Are there any alternatives?
Read on to find out more about dividing retirement during divorce.
How to Value Retirement Accounts
1. Defined Contribution Plans
Individual Retirement Accounts (IRAs) and 401(k)s are classic examples of defined contribution plans. You pay fixed amounts of money into the account, the money is invested and the returns are credited to your account.
Let’s say you have a 401(k). If you opened your 401(k) after the date of marriage, the account is marital. Your spouse will have a right to 50% of the funds in the account.
If you opened your 401(k) before the date of marriage and put money in it during the marriage, it is partially marital.
To calculate the part of the account that is marital, you can use the coveture fraction. It can be used to calculate the martial part of pensions and defined contribution plans, such as 401(k)s and IRAs. First, determine the total number of years you’ve participated in the plan. Then, determine the total number of years you’ve been married and participating. Finally, divide the number of years you’ve been married by the number of years the account has been open.
For example: George starts working for Space Sprokets, Inc. in 2005. As part of his employment, he receives an employer-matched 401(k). He marries Jane in 2008. They later separate in 2015.
Coveture Fraction: 7 Years of marriage in which George participated in the plan during the marriage/10 years of total participation time before the date of separation = .70. Thus, the marital part of the 401(k) is 70%.
Under NC law, Jane is entitled to half of the marital part of the account. Since the marital part is 70%, Jane is entitled to 35% of the account.
Defined Benefit Plan
A defined benefit plan’s value is defined by a formula. It’s usually payable as a monthly annuity until the participant’s death. While defined contribution plans follow an equation, defined benefit plans are more complex. In some cases, experts may need to be brought in to help determine the value.
You’ll need to know your life expectancy and earliest retirement age. Then, you’ll need to determine the value of the pension at your earliest retirement age. You and your spouse will also need to decide on a discount rate to determine the present day value of the plan. There isn’t a hard and fast rule to deciding on a discount rate which is why an expert may be needed during the process.
How to Distribute the Retirement Account
When distributing funds from retirement plans, it is important to follow the IRS tax code. If done right, transfers are considered tax-free. If not done correctly, you could face a tax penalty or a large tax bill if the money is counted as income to you.
To avoid a tax penalty or large tax bill at the end of the year, follow these rules:
Certain retirement plans, such as 401(k)s and pensions, are considered “qualified” plans. Meaning, they are governed by Section 401(a) of the U.S. Tax Code.
If a retirement plan is a “qualified” plan, you’ll need a Qualified Domestic Relations Order (QDRO).
A QDRO is a special court order. It allows you to distribute all or part of the funds in your retirement account to your spouse. If you have a 401(k), pension, or other qualifying plan, you must have a QDRO to disburse the funds. The plan administrator will not accept a separation agreement or other document in place of a QDRO.
Obtaining a QDRO takes time. After the parties reach a settlement agreement, the QDRO should be drafted. Typically, the spouse receiving the distribution is responsible for the cost of drafting the QDRO. Once signed by a Judge, the attorney will send it to the plan administrator.
The plan administrator must approve the QDRO. Once approved, the plan administrator will contact the parties and coordinate distribution. If it is not approved, the plan administrator will let the parties know why. It will need to be corrected and resubmitted. The process can take a few months before you receive your disbursement.
IRA accounts do not need a QDRO to distribute funds to your spouse. But to avoid a tax penalty, do not request a direct withdrawal. Instead, request a transfer of funds to a separate IRA account. If your spouse already has an open IRA account, you can transfer the funds there. Otherwise, your spouse will need to open an IRA account to have the funds transferred or rolled over.
Government Retirement Plans (Non-Military)
The federal government offers several different types of retirement plans. You could have a Thrift Savings Plan (TSP), Federal Employees Retirement Systems (FERS) or Civil Service Retirement System (CSRS).
These accounts do not need a QDRO to divide. But your TSP account will need a Retirement Benefits Court Order. Once submitted, the plan administrator will freeze the account. You’ll still be able to make contributions but you won’t be able to take out a loan or withdrawal. Like the QDRO process, the plan administrator will review the order. He or she will make a decision about the distribution of funds in the account. You’ll receive notice of the outcome once the plan administrator makes a decision.
For more information about your TSP account, go to www.tsp.gov.
For more information about your FERS or CSRS account, go to www.opm.gov.
Alternatives to Dividing Retirement Account
If you’ve worked hard to save for retirement, odds are you don’t want to transfer any funds if you can help it. Even if you’re willing to transfer, the legal costs of dividing the retirement account can be a deterrent. If you’re looking for ways to avoid splitting your retirement account. You should talk to your attorney about available alternatives. To maintain your retirement account intact, you can trade a non-retirement asset of equal value.
For example, say you have $50,000 in retirement and your home has $100,000 of equity in it. Your spouse is entitled to $25,000 of your retirement. And your both entitled to $50,000 of the equity when you sell your home. You can give your spouse $75,000 in equity so you don’t have to transfer $25,000 from your retirement account.
Regardless of the type of retirement account you have, dividing it correctly is complicated. It pays to have a knowledgeable attorney on your side. Contact us today to learn more about protecting your assets in a divorce.
You’ve probably thought about making a will before. But you haven’t gotten around to doing it yet.
We get it. It always seems like there is something more important to do. But there’s nothing more important than making sure your affairs are in order, should the worst happen.
Benefits of a Will
If you don’t have a will, you won’t have a say in how your property is divided when you pass. Your property will be divided according to NC “intestate” law. Having a will in place allows you to:
1. Leave all or part of your real and personal property to the people you want.
2. Leave all or part of your real and personal property to your favorite charity.
3. Choose someone you trust to take care of your children.
4. Choose someone you trust to manage any property you leave for your children.
5. Choose someone you trust to be your executor- the person who makes sure your wishes are carried out.
Requirements for a Will in NC
In North Carolina, as long as you are 18 years or older and of “sound mind,” you can create a will. You must sign the will in front of two witnesses.
If you are unable to sign it yourself, you’ll need to direct someone to sign it in front of the witnesses.
Anyone can witness a will as long as they are 18 years or older and of “sound mind.” But it’s best to use witnesses who do not have a beneficiary interest. Meaning, they do not stand to inherit anything under your will.
Lastly, you do not need to have your signature or the witnesses’ signatures notarized. But it’s best to use a notary. Using a notary and including certain statutory language will make the will self-proving. A self-proving will saves time and money. Without a self-proving will, the probate court will have to track down your witnesses to verify their signatures.
Who Can Draft a Will?
While it’s possible to draft your own will, it’s best to have an attorney draft it for you. Wills can be complex and hard to get right, especially if you have children.
You and the other parent have your custody order. It appears to be straightforward and clearly defined. However, the other parent takes every opportunity to argue over any provision of the order that is vague or unclear. The fighting could be for a multitude of reasons like continued anger and distrust of the other person. Whatever the reason, you’d love to go back in front of a Judge (and maybe you already have… more than once) but continued litigation is so expensive. What do you do? Consider a parenting coordinator.
North Carolina allows contentious couples to seek decisive relief without spending large amounts of money continuously going before a Judge. In North Carolina, a Parenting Coordinator (PC) can be appointed in high-conflict custody cases to assist parents outside of court and help them reduce conflict. According to N.C.G.S. §50-90 and §50-93, a PC is an impartial person with an advanced degree in psychology, law, social work, counseling, medicine or a related subject area. He or she must have five years of related post-degree experience and must participate in 24 hours of training related to child development, high-conflict family dynamics, divorce, mediation and problem-solving techniques.
If appointed, the judge is required to specify the authority granted to the PC in a court order. Matters within the PC’s authority can consist of identifying disputed issues, reducing misunderstandings, clarifying priorities, exploring options for compromise and developing methods of collaboration. Perhaps most importantly, a court can grant a PC the authority to decide issues that relate to the implementation of the parenting plan but that aren’t specifically governed by the court order. This power is especially helpful in ensuring custodial issues which come up in everyday routines or emergencies are decided quickly and in the best interest of the child.
Considering the downsides of a parenting coordinator . Understand that a PC cannot make major changes to your custody order and cannot punish a parent for clear violations of a court order. Many parents try to use a PC as a mediator between the parties, involving them in every communication or decision. This is not what a PC should be doing. Parenting coordinators are there to decide largely unresolved issues or issues that just are covered or contemplated by your custody order.
If you believe your situation calls for a parenting coordinator to be appointed, contact us to discuss your legal options today. Not only are our attorneys experienced in highly contested custody cases, our partners are certified parenting coordinators.
You’ve gone to court and gotten your divorce. The Judge granted you custody of the children. Now what happens to your them before they reach adulthood?
It’s a hard thing to think about. But planning ahead for the unexpected can give you peace of mind and your children a bright future.
Below are some things to think about as you plan for your children’s future:
1. Parental Rights
The other parent is first in line to receive responsibility for the children. That is, if the other biological parent has established paternity. Or, in the case of same-sex couples, if an adoption has taken place.
2. Third-Party Custody Claims
You might be considering naming a close friend or relative in your will as the children’s guardian. There are several reasons why you might want someone else to care for the kids instead of the other parent. Unfortunately, it does not matter if you name a third party as your children’s guardian. If paternity isn’t an issue and the other parent is still living, naming a guardian will not work.
Instead, the third party may be able to file for custody. To file for custody, he or she should have a close relationship with the child. Grandparents are usually the first to come to mind, but it can be anyone with a close and loving relationship. To win, he or she would need to prove the other parent is unfit. An unfit parent has “acted inconsistent with his or her constitutionally protected rights.” For example, the other parent has a substance abuse issue. Or, the other parent has abandoned the children or neglected them. But there are other factors a Judge could use to make that determination. You should speak with an attorney from our firm to find out more information.
3. Both Parents Have Passed
If the other parent has already passed, naming a guardian in your will will be effective. If you do not have a will, the State of North Carolina will take responsibility of your children. Child Protective Services (CPS) will look to friends and family to serve as their guardian. It’s possible that the guardian may want to adopt later on, but they don’t have to.
If no one is able to serve as guardian, the State will take care of your children through the foster care system. This is the least favorable outcome. That’s why it’s important to have a will. And to have crucial conversations now about your children’s future care. Please contact us to discuss your estate plan and find out more about keeping your family safe.
A new year is upon us! Many people take the opportunity to approach life with renewed vigor and discipline via New Year’s resolutions. Have you been fighting to save a doomed marriage? Have you reached your limit but have no idea how to formulate a plan to move forward? We’re here to help.
Many people believe resolutions are made to be broken. Whether you’ve been successful with resolutions in the past or find the tradition to be futile, the act of sitting down, analyzing your situation, and setting goals can help in your divorce-related decision making process.
If you set goals and make efforts to achieve them, you’ll be in a better situation when you separate from your spouse. We’ve developed a list of goals based on our experience in helping parties going through divorce and separation.
1) Move Forward and Don’t Look Back
The road towards divorce is long and arduous. In some cases the process begins simply with one spouse moving from the martial residence and demanding a divorce. More frequently, the journey begins with an ultimatum from one spouse putting the other on notice that if things don’t change they will leave. Very frequently, at least one spouse is opposed to ending a marriage.
Once it becomes obvious that your marriage will end, whether it be in two weeks or two years, it’s time to plan. You know when your marriage is over, whether you want to admit it or not. Don’t wait until the last minute to start planning.
2) Plan for your separation or divorce
Planning for separation is a massive undertaking. The thought of planning can be intimidating and can prevent you from taking action. Have you been in a long-term marriage for so long, you don’t know where to start in planning your post-divorce life? Here are some crucial steps to take in post-separation planning:
Creation of a budget is essential when planning for separation. In addition to the obvious reasons, (calculating how much money you need to live) a budget can help determine your need for spousal support, alimony, and child support. Just reducing expenses to writing tends to be an enlightening experience and is essential to shaping a financial plan going forward.
Gather Financial Documents
Bank statements, tax returns, retirement statements and any other documents reflecting income and assets are necessary in determining property division and support. Gathering these documents before things go south will save you time and money in the long run.
Search for Housing
If you’re the party who is vacating the marital home you will need as much lead time as possible to plan for relocation. Finding a place suitable for you and your children and purchasing essential furnishings can take weeks or months depending on uncontrollable factors. Getting a head start is essential.
Remain cordial with your spouse
In many cases this is easier said than done. However, if it’s at all possible to maintain a cordial relationship with your spouse through the divorce process, the savings can be immense emotionally and economically.
Depression, adjustment disorder, and anxiety are common issues with spouses and their children going through a divorce. Taking preventative mental health care steps if feasible can help you get through the rough times.
3) Refrain from disparaging your ex
Disparagement of your ex-spouse in front of the children can have long-term damaging effects. It can damage the relationship between you, your spouse and your children. Often children are forced to choose sides which can cause long term emotional damage. Furthermore, judges are not fond of parents who involve their children in inflammatory matters related to divorce, such as: a) discussing the nature of pending litigation, b) questioning children about what happens in the other parents home, or c) referring to the other parent in a negative or insulting matter. Despite your feelings, there is nothing to gain by disparaging your spouse in front of the children. Avoid doing it at all costs.
4) Stay Active
Maintaining a regular exercise routine and an active social schedule can help take your mind off of emotional drain associated with divorce and reduce stress. Consider joining a gym or participating in social groups centered around your interest areas as a way to cope and stay motivated.
5) Don’t be afraid of the unknown
Divorcing after a long-term marriage can feel like navigating uncharted territory. Don’t let this uncertainty force you to stay in an unhealthy or unsafe relationship. Being vigorous in your preparation will reduce the fear associated with new challenges and give you the strength needed to move forward.