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She’s Backkk – when your ex-wife just can’t stay away

December 1, 2016 | Ashton Overholt | Divorce & Separation, Estate Planning, Family Law | No Comments

Proceed with caution, carless errors in a divorce judgment can cost your kids their inheritance.

By Ashton Overholt

In Hinton v. Hinton, No. COA16-85 (2016), Mr. and Mrs. Hinton utterly failed at obtaining a valid divorce. After 24 years of marriage and 2 children, the couple separated and Mrs. Hinton filed for divorce. In the initial documents she filed with the court, the defendant was listed as Willie George Hinton, II (“Willie”), the couple’s son, rather than Willie George Hinton, Sr. (“Mr. Hinton”), the actual intended defendant and husband. Subsequently, Mr. Hinton filed an answer with the correct caption and admitted all allegations contained in Mrs. Hinton’s complaint. Overlooked by all parties involved, the Court entered a divorce divorcing Mrs. Hinton from her son, Willie. Little did they know that would eventually be a big problem.

Fast forward to 15 years later, neither Mr. nor Mrs. Hinton have remarried, and Mr. Hinton now has 3 more kids by another baby momma. Mr. Hinton falls ill and guess who reappears? Mrs. Hinton.

A beautiful portrait of a very beautiful girl

Upon Mr. Hinton’s death without a will, Mrs. Hinton filed a court document trying to get the divorce voided because it was impossible for her to be divorced from her son. Mrs. Hinton filed this document knowing that since Mr. Hinton died without a will she could share in his estate if she was still married to him. The trial court granted Mrs. Hinton’s request and voila, Mrs. Hinton was then entitled to a portion Mr. Hinton’s estate.

Subsequently and obviously, Mr. Hinton’s 3 children from another baby momma were outraged. They filed a bunch of motions, however, the trial court denied all of their motions and reconfirmed that Mr. and Mrs. Hinton were still married. Mrs. Hilton had won.

At this point, the kids were feeling defeated and to add to their frustrations, the only issue they could ask the court to reconsider was whether the trial court erred in telling the kids they could not be part of the court action. Nevertheless, they moved forward and continued to fight. On 15 November 2016 the North Carolina Court of Appeals in a published opinion relied on N.C. Gen. Stat. § 1A-1, Rule 24(a)(2) and ruled that the trial court based their finding that the kids had no interest in the action on an “erroneous legal determination regarding Mr. Hinton’s status as a party.” The Court suggested that Mr. Hinton became a party to the action when he made an appearance by filing an answer. Ultimately, the Court ruled that the trail court had to hear the issue again. So maybe, there is hope after all for these kids in their effort to obtain their father’s assets, but they still have some work to do.

Will the kids prevail? Only time, attorney fees and litigation will tell.

Lesson to be learned: Hire an attorney folks – little mistakes can cost a fortune. Also, don’t die without a will, plan who you want to have your stuff.

Disclaimer: Seek legal advice from an attorney licensed to practice in your jurisdiction.



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