Woodruff Family Law Group here in Greensboro, North Carolina concentrates on guiding clients through today’s legal, financial and psychological divorce environment to develop creative solutions tailored to your unique situation.
Getting divorced is hard enough. BEING divorced and trying to move beyond the past is a whole different ball game. Putting your trust in a new relationship is hard. The thought of sitting through the cliché movie – dinner – coffee dates making idle chit chat and trying to get to know someone new can be daunting and repetitive. Why not try something different? Get out of Greensboro, North Carolina, get out of your comfort zone. Traveling with someone is a great way to figure out how and if you are compatible with them.
Do I recommend a weekend trip to Miami with someone you’ve just met? Of course not. But “traveling” doesn’t have to mean spending hours trapped on a plane suffering the drools and dronings of random strangers. You can get out of dodge right here. There’s plenty of small towns around the Piedmont Triad to explore, and each one has its own distinct personality. You can feel like you’re in another world but still be close to home (close enough to be rescued).
When my boyfriend and I began seeing each other, our first all-day excursion was to Graham, North Carolina. It was one of the greatest days I can remember. Afterward, I was hooked – on him and on Graham, NC. Here are the highlights on what we saw, and what our experiences taught me about Mike:
Can the court terminate a parent’s rights for willful abandonment of the children? Are there steps a parent estranged from his child can take to ensure this doesn’t happen? In a recent North Carolina appellate decision, the court considered willful abandonment and termination of parental rights. The case arose when the parents of two minor kids separated in 2010 just before the second child was born. The mother sued for custody, child support, and alimony. The father didn’t go to the custody proceedings, and the mother was given sole custody of the kids with reasonable visitation for the father who lived in a different state.
Several years after that, the mother sued to terminate the father’s parental rights based on abandonment. The lower court had a hearing and decided to terminate the father’s parental rights. It waited almost a year to enter its written order. However, the father appealed the written order.
On appeal, the father argued: (1) the lower court hadn’t entered the written order in a timely way, (2) there wasn’t enough evidence to show abandonment, and (3) termination of his parental rights wasn’t in the kids’ best interests.
The appellate court explained that vacating a trial court’s order as untimely was barred by case law even though Section 7B-1110 of the General Statutes provided it should have been written and entered within 30 days of the termination of parental rights hearing.
The appellate court explained that termination of parental rights is only appropriate where the lower court finds by clear and convincing proof a parent willfully abandoned a child for last 6 months in a row immediately before a petition or motion was filed. In this case, the lower court’s findings were supported by clear and convincing evidence. It explained that abandonment has to show up as a willful determination to forgo all parental duties and give up all parental claims to a child. Findings need to show a parent’s actions are completely inconsistent with a desire to keep custody of a child.
Factors to be considered include a parent’s financial support and emotional contributions to a child. In this case, the father hadn’t tried to visit his kids or ask for visits with them or to contact them or even to ask how they were doing. He didn’t even send birthday or Christmas cards of emails to the kids. Both were under the age of 6, and the younger child had zero memory of the father. The older child’s only memory of the father was that the father ignored him when the mother took the kids to their paternal grandfather’s funeral. The older child took this as a rejection and needed therapy to address it.
The father doesn’t challenge those findings. He instead argued that these findings didn’t include the fact that his attorneys had tried to contact the mother to talk about a custody arrangement in 2014, before she tried to terminate his parental rights. The appellate court disagreed noting that legal action didn’t undermine the father’s decision not to have a parental relationship with his kids in 2 1/2 years.
The appellate court also found that the lower court had made thorough findings of fact and made a reasoned decision about the children’s best interests, and that it had not abused its discretion. It affirmed the lower court’s decision.
Usually courts consider it important for a child to continue building a relationship with both parents. However, where a parent willfully abandons his children, his parental rights may be terminated. It is important for parents who want to continue to have parental rights to nurture their relationships with their kids, even if the kids live with an ex-spouse. If you are concerned about a North Carolina child custody matter, you should consult skillful family law attorneys. Contact the Woodruff Family Law Group at 336.272.9122 or via our online form.
Can a lower court restrict your use of your passport in a North Carolina child custody order? In a recent North Carolina case, the defendant appealed from the court’s denial of his motion for reconsideration and relief from a 2015 child custody and support order. The defendant was a Poland-born American citizen. He and his wife had one minor child. They separated in 2013 and were divorced in a 2014 judgment.
The plaintiff filed a complaint asking for custody of their child, child support, alimony, post-separation support, equitable distribution and attorneys’ fees. After a hearing, the lower court awarded primary physical custody to the mother, with the parents getting joint legal custody. The lower court also established a visitation order and child support obligations. The lower court included a provision stating that the father couldn’t seek or be allowed to have a passport for the couple’s minor child.
The order gave the mother sole authority and decision-making with regard to any passport applications and in case a passport was issued to or for a child, the mother would have exclusive authority not only over the passport but any foreign travel. The father was not allowed to take the minor child out of the continental United States, except where the court provided written authority to do so. His passport had to be surrendered to the clerk and he had to apply to the court if he needed to travel with his passport.
The defendant didn’t appeal the custody order, but instead his attorney filed a motion to reconsider the part of the order that granted joint legal custody to him and the mother. Almost a year later, he filed an amended motion for reconsideration of the custody order. He argued that the mother hadn’t asked for anything related to his passports and that his own attorney asked for the provision about his own passport without his knowledge or consent. He also argued that the court’s requirement that he surrender his passports was a mistake based on lack of jurisdiction under N.C. Gen. Stat. section 1A-1 over the issue of holding passports, particularly a Polish passport.
At a hearing, the defendant also raised the issue that there were no factual findings related to his passport or the child’s passport. He argued that the child custody hearing was not about him, and so the court didn’t have jurisdiction over his passport. The mother argued that the passport limitations were reasonable and the lower court was authorized to stop the defendant from using passports to travel with the child out of the country. The lower court corrected certain clerical errors but denied the motion for reconsideration. The judge felt confident that the order as it related to the passport was warranted under the law. The order specified that the father had engaged in secretive actions and made false statements to the mother about his own mother and his travel, which led to valid concerns about his intentions.
The father appealed. He argued that only the United States Department of State had the authority to impose restrictions on his passport and that the lower court had to show an appropriate exception to the general immunity of the Polish state from the jurisdiction of United States courts.
The appellate court reasoned that the custody order wasn’t void as a matter of law, and therefore affirmed the lower court’s order denying his motion for relief. It also reasoned that the defendant hadn’t argued the lower court’s decision to stay proceedings on his passport application affected a substantial right. The defendant didn’t identify a particular material right he’d lose if the order weren’t reviewed prior to final judgment or how he’d be injured if the order weren’t immediately reviewed.
North Carolina child custody disputes can have particularly unique challenges if one parent has strong ties to another country. If you are concerned about child custody issues, you should consult dedicated family law attorneys. Contact the Woodruff Family Law Group at 336.272.9122 or via our online form.
In North Carolina, a law that imposes a cooling off period can present a difficult problem if one spouse is being battered. Recently, Woman’s Day ran a piece about domestic violence and the difficulties of being an abused spouse who needs to get a North Carolina divorce. The article led off with the story of a 33-year-old woman who had enough proof of her estranged spouse’s violence to warrant getting a restraining order. Her proof included bruises. Yet, because she lives in North Carolina, she was subject to the state’s cooling off period of one year and one day from the date of separation before obtaining a divorce.
During the year and day, she had to keep paying for her husband’s health insurance until she couldn’t afford it. She suffered various health problems and needed a medical leave, during which time she lost her health coverage. When she returned to the job, she discovered that her spouse (who was also a former coworker) had been rehired, even though she had a protection order against him — and her employer was aware of it.
In November, she petitioned the governor, state attorney general, and the North Carolina General Assembly via Change.org, requesting an amendment to G.S. 50-6. This is the law that requires a cooling off period. In her petition she argued that if there is proof and an order, the victim should be able to file for divorce within 60-90 days because the existing law puts survivors of domestic abuse through unnecessary trauma and difficulty.
The petition garnered more than 65,000 signatures. A.J. Walton, a spokesman for Change.org, stated that women who suffer from sexual assault or domestic violence often organize online in order to share their tales and ask for alterations in policy. Walton noted the petitioner’s bravery in trying to transform suffering into positive action. Some elected officials expressed that they were interested in supporting her.
In 2015, Senator Jeff Jackson proposed a bill to get rid of the one-year cooling off period in the case of felony conviction of one spouse, but it didn’t even get a hearing in committee. He’d modeled the bill after a 2014 law from another state that made domestic abuse an exception to its waiting period, allowing victims to obtain an immediate divorce. The senator noted that if someone is convicted of stabbing his wife, the wife shouldn’t have to wait a year for a divorce.
The article also commented that North Carolina is culturally conservative and, in 1993, was one of the last two states to recognize marital rape as a crime. It is one of 17 states that has a waiting period of at least six months. States with two-year waiting periods for divorces that aren’t mutually consented-to are Pennsylvania, Maryland, and Illinois.
The magazine noted that there are comparisons to be drawn between North Carolina’s failure to protect domestic violence victims and laws in places like Russia, where President Putin approved a law that reduced domestic assaults that don’t cause substantial bodily harm from a crime to an administrative infraction.
The petitioner explained that she hid the petition from friends and that it wasn’t a personal attack on her spouse or about her individual circumstances. Rather, she wants the law for anyone who has to suffer from domestic violence at the hands of their spouse.
North Carolina divorces can be especially challenging when there are domestic violence issues involved. If you are hoping to get a divorce, you should consult skillful family law attorneys. Contact the Woodruff Family Law Group at 336.272.9122 or via our online form.
Recently, Fox 8 reported about cities across the country where divorce is on the rise. Journalist Mary Kay Blakely compared the psychological toll of divorce to a triple coronary bypass. The article noted that divorce was not only expensive, but also complicated and connected to various medical problems. Thousands of people divorce each year. Around 50% of all marriages in the country conclude in a divorce. The United States ranks twelfth in the world for percentages of marriages that terminate in divorce. If you’re considering separating from your spouse, it’s worthwhile to speak to a North Caroline divorce lawyer to know your options.
The composition of our country’s divorced population has transformed over time. Certain cities have seen a huge increase in divorce. A leading genealogy research website called MooseRoots conducted a study of the percentage change of populations in various cities. In its calculation of this change in each state’s divorced population between 1970-2010, three North Carolina cities appeared on list of the top 25 cities.
The North Carolina city that was highest on the list came in at number 4 of all cities listed. It was Greensboro, North Carolina. The percent of those who divorced in 1970 was 3.02. The percentage of divorced couples in 2010 was 10.83. The percentage change between those years was 260.
Recently, Kiplinger’s reported on “gray divorce,” or divorce among couples that have been married for 30-plus years. It pointed out the emotional and financial drains of a divorce, even when couples are older and presumed to have more security. Couples may find divorce tough if they’ve been married for so long that their assets and future plans are tied together. Often both spouses wind up living on half of the income they anticipated but many of the same expenses when they have a late-in-life divorce.
North Carolina is an equitable distribution state in which the court divides a couple’s property in a way that is equitable or fair, but this does not necessarily mean property is divided evenly in half. The court starts by presuming a 50-50 division is fair, but either party can submit evidence to rebut this presumption.
The thirteen factors the court may consider when deciding whether to deviate from an even split are: each spouse’s income and debts, support obligations in earlier marriages, how long the marriage was and the ages of the spouses, parent’s needs with the custody of a child and use of marital home, whether pension and retirement benefits are expected and whether they will be separate property, each spouse’s contributions to acquiring the marital estate, contributions made by one spouse to the other’s career or education, contributions that increased the value of the separate property, whether the divisible property was liquid or non-liquid, the difficulty of assessing interest in assets or business, each party’s tax consequences, actions by either party that increased, wasted or devalued assets, and other factors the court believes are property and just.
You and your spouse can hire attorneys to negotiate and craft a settlement that you both believe is fair. Or you can let the court decide what property division and settlement would be equitable. There are a number of considerations that both spouses should keep in mind once they decide to separate.
Kiplinger’s pointed out that there are six things to consider at the end of a marriage. The first is that emotions shouldn’t compromise your financial decisions. Often people want to keep up appearances and may spend money on items they can’t afford even before a divorce is final. It makes more sense to be cautious about spending and determine what will be needed both in the present and in the future before shopping for the future.
Kiplinger’s also suggested that spouses straighten out their paperwork. Each spouse should obtain copies of tax returns for the past three years, credit card statements, bank statements, insurance documents, car registration paperwork, retirement account statements, and receipts that might affect taxes for the year of the divorce. If a settlement is negotiated, the lower earner should take pretax investments since the lower-earner’s future tax bill will be less, as long as they don’t need income from the IRS or other investment before age 59 1/2. There are alternatives, whereby a lower earner can take highly appreciated holdings. When retirement income pushes a person into a higher tax bracket in the future, he or she should speak to an accountant or other financial professional about converting certain accounts for purposes of a lowered tax burden.
Both spouses should try to maximize retirement income. Social Security payments aren’t community property but you’ll need to decide how to file after divorce. It’s important to speak to an advisor about rules for filing. It can also be important to talk about filing options for pension plans, catch-up contributions, and ownership of life insurance policies. Sometimes an ex-spouse that receives spousal support may need to own a life insurance policy on the ex spouse who earned a higher income in case that higher earning spouse passes away.
If you are concerned about the kinds of issues that come up in a grey divorce, you should contact the Woodruff Family Law Group at 336.272.9122 or via our online form.
Alimony is also known as spousal support and it refers to payments made by one spouse to support the other after separation or divorce. The payments may be lump sum payments or ongoing payments. Generally, post-separation alimony lasts until the divorce is concluded. However, a court may also award alimony after a divorce is finalized. In North Carolina, most spouses that were married 10 years or less don’t get awarded alimony for longer than half the marriage. Recent changes to the tax consequences of alimony under federal tax law will have a major impact in how alimony is negotiated in North Carolina.
Historically, alimony has been tax deductible for the paying spouse and had to be reported as income on the recipient’s tax return. In North Carolina, the payment had to be made pursuant to a written separation agreement or court order to be tax deductible and it also had to be in cash. The payment had to be made once the payer and recipient were not part of the same household. The alimony had to be paid within the year the payer was taking the deduction. The deduction could be taken regardless of whether the payer itemized deductions on his or her tax return. The former spouse’s social security number had to be included in the tax return or the deduction could be disallowed.
New federal tax laws will eliminate the spousal support deduction starting on January 1, 2019. Attorneys and judges have had to hurry to finalize accelerated divorces that were filed to beat the December 31 deadline. If you file before this deadline those who expect to pay spousal support will be able to deduct money from their taxable income each year, which can result in thousands in savings for higher-income tax filers.
This change will affect both payers and recipients of alimony. A payer will want to negotiate a smaller payment because he or she won’t be able to deduct it. However, recipients of spousal support are also incentivized to beat the deadline. It’s expected that judges will award smaller spousal support payments next year when the lost tax deduction reduces what those who earn a lot can afford. Those who receive alimony after 2018 won’t need to report alimony payments as income and the money will accrue to the person being paid without tax liability.
The expectation is that people will be trying to hurry to get their divorces finalized by December. An agreement had to be filed with the court by the first of October to get the agreement processed prior to the new tax law becoming effective. There is a process known as bifurcation that allows a couple to agree regarding the spousal support provisions of the settlement and obtain judicial approval, even if the rest of the divorce is not settled.
The old code allowed a household income to obtain tax relief during a divorce because the higher-income spouse would transfer income to a lower-income spouse who had a lower tax rate. However, the new law is anticipated to reduce alimony payments by up to 30%. The impact of the law on child support isn’t yet clear.
If you are concerned about the tax consequences of the new federal law and the impact on alimony and other aspects of your divorce, you should contact the Woodruff Family Law Group at 336.272.9122 or via our online form.
Some people assume it’s not romantic to anticipate the possibility that you and your spouse won’t stay together, but in truth nobody can predict the future. Often people’s feelings change as their lives change. Sometimes marriages are more difficult than anticipated at the beginning. It can be helpful for partners to discuss the possibility that their feelings will change, and hire an attorney to craft a prenuptial agreement. Forbes published an article reasoning that it can help to have a balanced conversation if your feelings change, while you have good feelings about your partner and want the best for him or her.
The magazine suggested that couples should consider a prenuptial agreement. Two big reasons people divorce are money and communication problems. Discussing and negotiating a prenuptial or premarital agreement can promote a healthy conversation about your financial situations. This allows both partners to go into the marriage with eyes open about finances, and in the end may stop a divorce from happening.
Prenuptial agreements are contracts that spouses enter before a marriage. The content of such agreements varies, but often would-be spouses agree on property division and spousal support during the divorce. Some people erroneously assume that prenuptial agreements are only for those who are famous or rich, but the Forbes article points out that every person has something of value that needs protection. A prenuptial agreement allows couples to determine what will happen to their property, inheritance, debt, and income. Generally, assets can be separated without premarital agreements, but it can help clarify matters to have one.
Issues addressed by a prenuptial agreement may include how assets should be divided upon divorce, allocation of debt, ownership of property upon divorce, amount of maintenance or alimony to be paid on divorce, obligations to create a will or trust to determine assets distribution on death. However, the prenuptial agreement can’t address how parental obligations will be allocated, parenting time or amount of child support. The child, not a parent, owns the right to receive child support. Additionally, parenting decisions are supposed to be based on the best interests of the child at the time a couple divorces.
In order to create a valid prenuptial agreement in North Carolina, the agreement needs to be in writing and executed before the marriage. It needs to be fair and reasonable and based on both parties fully disclosing their assets and liabilities. Sometimes, during the drafting of a premarital agreement, a couple may disagree about whether to create the agreement, what the terms should be, or how long a prenuptial agreement should last. It’s possible for a couple to include a sunset clauses that specifies a date on which the agreement will expire.
Spouses are able to amend or revoke prenuptial agreements after they are married. Courts can decide not to enforce a prenuptial agreement if they don’t meet legal requirements or signed under duress. When a spouse tries to enforce the agreement, it is possible that the other will claim she or he was pressured into the agreement. The court will not enforce an agreement that is unconscionable.
If you are concerned about drafting a prenuptial agreement it’s important to consult experienced divorce attorneys. Please contact the Woodruff Family Law Group at 336.272.9122 or via our online form.
Sometimes parental rights are terminated due to a parent’s failure to make reasonable progress to correct the situation that resulted in a child being removed from the home. But how does the court measure reasonable progress? And when does it do the measuring? In a recent North Carolina parental rights case, a mother appealed from the lower court’s order terminating her parental rights for failure to make reasonable progress to correction conditions that led to her being removed from the home.
The case arose when the Department of Social Services got nonsecure custody of a child. They petitioned the court, claiming she was neglected and that her home was made harmful by domestic violence between the parents. The mother had been choked in the child’s presence ,when the child was only four months at the time, and there was also a bruise on her arm. The mother had filed charges against the father for injuring the child in question’s half-sibling who had to go live with her father.
The lower court found that the child was neglected. She was placed with her paternal grandmother. The lower court ordered the mother to follow an out-of-home service agreement that required her to complete various tasks, including getting psychological and mental health assessments and refraining from criminal actions. She also had to get and keep a stable income for at least three months in a row. She was permitted 90 minutes of supervised visitation with her child each week.
The lower court ordered reunification as a permanent plan. It later found the mother had tested positive for very high levels of amphetamines. She also gave inconsistent reports about substance abuse, diagnosis and medication. The lower court stopped reunification efforts and changed the permanent plan to adoption. It also found that she hadn’t complied with terms of her service agreement and was still hostile and uncooperative with the Department of Social Services.
The Department petitioned to terminate the mother’s parental rights for willfully failing to make reasonable progress to correct what had resulted in removal. The court found there was a failure to make reasonable progress and that termination was in the child’s best interest.
The mother appealed, arguing that the lower court had made a mistake in terminating her parental rights for failure to make reasonable progress to correct conditions which led to removal of the juvenile, because the findings of fact were not enough to support the court’s conclusion. The appellate court explained that parental rights can be terminated under N.C. Gen. Stat. § 7B-1111(a)(2) where the court finds and decides that there is clear and convincing evidence to support the conclusion that the parent willfully left the child in foster care or placement outside the home for more than 12 months without showing to the court’s satisfaction that reasonable progress had been made in correcting the conditions that resulted in removal.
The lower court’s order needs to include sufficient factual findings about whether a parent acted willfully and the parent’s failure to make reasonable progress. There is no reasonable progress where whatever conditions resulted in removal continued with little or no signs of progress. The lower court found that within the last six months the mother had called the police on her live-in boyfriend and father of her new child. She couldn’t show what she learned in parenting classes. She continued to shift her attention away from the child during multiple visitations. She didn’t complete the Service Agreement, and didn’t show the ability to put her child first.
The mother argued that she called the police on her live-in boyfriend because he wouldn’t leave, but that it wasn’t domestic violence, and the court’s finding didn’t support the conclusion that she hadn’t corrected the domestic violence issue that resulted in her child’s removal. The court agreed that the Department hadn’t presented clear, convincing evidence to show she failed to demonstrate that she’d learned domestic violence skills. At the hearing, a social worker had testified to the mother’s version of what had happened with her live-in boyfriend and that it hadn’t involved violence or force. The appellate court found that seeking assistance showed the mother’s attempt to stop domestic violence from happening.
The appellate court also found that the Department hadn’t shown evidence to support the conclusion that she wasn’t able to protect the child and it wasn’t her burden to prove that a fact didn’t exist. The Department had claimed the mother had a lack of focus with the child, but the appellate court explained that this wasn’t why the child had been removed. The Department hadn’t shown evidence of improper interaction between mother and child or physical abuse. The Department claimed that there were deeper issues in the family, but hadn’t put those conditions in the nonsecure custody order or neglect petition and therefore hadn’t given notice to the mother of those conditions.
The lower court’s order was reversed.
If your child has been removed from your North Carolina home and there is the threat that your parental rights will be terminated, it is important to seek legal counsel. Call the Woodruff Family Law Group at 336.272.9122 or contact us via our online form.
You may be wondering whether you’ll need an expert to value your property during a divorce. It may be necessary to retain one, but there are also some cases, where a property owner can provide adequate testimony about the value of assets. In a recent North Carolina appellate decision, a plaintiff appealed from the judge’s equitable distribution of his and his wife’s property. He argued that the lower court had made a mistake in valuing sports memorabilia at $190,000 when his ex-wife hadn’t provided competent evidence of the memorabilia’s fair market value.
The couple had married in 1999. They had a child while married and separated in 2015. The husband sued for child support, child custody and attorneys’ fees. The wife counterclaimed. The husband moved for equitable distribution of their property. Of particular contention were items of sports memorabilia. Some was with the husband and some was with the wife. The wife thought the father had sold the missing memorabilia after they’d separated and believed appointing an expert was critical to value the memorabilia.
In the course of the divorce, the wife subpoenaed eBay to get the husband’s purchase history. She also sent the husband a spoliation letter. The husband went to their home and unloaded various sports items. The court allowed her to inspect his apartment and storage unit and she valued the items assigned to him at $190,000, while items assigned to her were valued at $5000. Included in the $190,000 figure were items not left behind that had been removed. Among other things the husband owned 13 boxes of baseball cards that were about 3200 a piece, 200 jerseys that were about $110 each plus the value of the signature when these jerseys were signed, as well as other memorabilia. Altogether the wife believed the fair market value was $190,000.