If you discover that you missed the initial filing deadline, North Carolina has a “savings statute” that allows the defendant to claim equitable distribution subsequent to the divorce under certain circumstances.  North Carolina’s statute allows a late claim for equitable distribution if the defendant was served by publication.  A late claim is also allowed when the divorce was granted in another jurisdiction. 

The Uniformed Services Former Spouses’ Protection Act (USFSPA) was passed in 1982 to make military pensions subject to division by state courts in divorce and property division proceedings.  All of the states now allow the division of military pensions as marital or community property.  North Carolina enacted N.C. Gen. Stat. 50-20(b)(1) (2001) so that marital property includes vested and nonvested military pensions under the USFSPA.  Furthermore, certain amendments made by Congress to parts of the U.S. Code dealing with Reserve retirement and benefits imply that Congress intended the Act to cover Guard and Reserve retirement also. 

The North Carolina Court of Appeals case of Draper v. Draper, 159 N.C. App. 465, 583 S.E. 2d 426 (N.C. App. 2003) involved the division of military retirement benefits in equitable distribution.  The plaintiff, Ms. Draper, requested an interim distribution of the defendant, Mr. Draper’s, retirement benefits.  The defendant was married to the plaintiff during his entire service as a member of the United States Air Force.  At the trial court level, the plaintiff was unsuccessful in getting any of the Defendant’s retirement benefits because she did not offer evidence of the date of separation value or the present value of the defendant’s benefits.  On appeal, the Court of Appeals reversed the trial court on the issue of equitable distribution.  The Court remanded the case to the trial court to value under the deferred distribution method and equitably distribute the defendant’s military retirement benefits, except for defendant’s disability benefits.  The Court explained that the North Carolina trial courts are not limited to the present value method, as long as the court values the retirement benefits as of the date of separation.

North Carolina Calculation

Equitable distribution and pension issues are addressed in N.C. Gen. Stat. 50-20.1 in which it provides a formula to value the marital portion of the benefits:

Years of Marriage that Coincide with Employment

Year of Employment

An example of division in a hypothetical case may help to illustrate how it works.  Assume that the couple has been married for 5 years and that, for all 5 years, she was employed by the company, government or organization providing the pension.

Also assume that her pay with 20 years of employment is $4,800 per month, and that she can retire after 20 years of service with 50% of her base pay.  Thus, the monthly retired pay of the employee spouse is $2,400.

$2,400 x  5 years marital pension service  = $600 (marital part of pension)

                    20 years total pension service

Military Calculation

Deferred Division: The marital fraction is calculated as follows:

Years of marital pension service   =  M

Years of total pension service            T

The numerator (M) represents the years of marital pension service, and the denominator (T) represents the total number of years of creditable service that the service member will perform.

An example of deferred division in a hypothetical case may help to illustrate how it works.  Assume that a service member has been married for 5 years and that, for all 5 years, he was on active duty in the United States Marine Corps. 

Also assume that his active duty pay with 20 years of service is $4,800 per month, and that he can retire after 20 years of service with 50% of his base pay.  Thus, the monthly retired pay of the service member is $2,400.

$2,400 x 5 years marital pension service  =  $600 (marital part of pension)

                   20 years total pension service

Present Value Offset: In addition to the future division of retired pay, all states recognize a second method of pension division called a “present value offset.”  This represents the present value of a series of money payments over the course of the service member’s life.  The money payments are their retired pay, present value is the amount used so that the service member keeps the entire pension.   The parties are left with a complete division of this asset.

How is present value calculated?  There are several options available.  Sometimes an expert is needed for trial.   If settlement is possible, a mail order pension evaluation can be done by a party or parties, approximately $300-$500.

There is also a second method of determining present value, and this one makes no assumptions regarding interest rates, life expectancies or inflation.  It involves pricing an annuity that will yield a monthly payment equal to the pension.  You and your attorney can seek out a professional to create a proposed annuity that might provide a better outcome.

North Carolina allows for several options to handle a military pension.  Make sure you and your attorney consider all of the options.

(Source: see “Silent Partner”, Military Pension Division – The Spouse’s Strategy, www.ncbar.com/lamp)

The rationale for this varies. Some mothers say they are uncomfortable at schools and social events. Others claim the children are embarrassed or the name is inconvenient and creates confusion for third parties.

In some states, a mother who has remarried may informally change a child’s surname to the step-dad’s name, regardless of whether the biological dad pays child support and exercises his visitation rights. Patricia Cook, What’s in a Name? The National Father’s Resource Center (2005) at http://www.fathers4kids.org/

Some states recognize that when there is a divorce and the mother is given custody of the children, the bond between the father and his children may be weakened if the children’s surname was to be changed. Therefore, some states do not allow a change of name against the father’s objection, merely to save the mother and child inconvenience or embarrassment. Robinson v. Hansel, 223 N.W.2d 138 (Minn. 1974). Other states will allow the name change if it is in the best interests of the minor children. See In re Application of Saxton, 309 N.W.2d 298, 300-01 (Minn. 1981); LaChapelle v. Mitten, 607 N.W.2d 151, 166 (Minn. App. 2000); Gleason v. Michlitsch, 728 P2d 965 (Or. App. 1986); Flowers v. Cain, 237 S.E.2d 111 (Va. 1977); Laks v. Laks, 25 Ariz.App. 58 (1975);

But this is absolutely not the case in North Carolina. The only way a child’s name can be changed in North Carolina is if both parents agree. In the Matter of the Change of Name of Crawford, 134 N.C.App. 137, 517 S.E.2d 161 (1999); N.C. Gen. Stat. § 101-2(d). It does not matter if it is in the best interests of the child. It does not matter if it leads to confusion or embarrassment or anything else. If one parent says no, the only way the name can be changed is by the child once that child reaches the age of eighteen.

And if the parent attempts to informally change the name in North Carolina, that might be viewed as parental alienation and a violation of the child custody order which may be punishable by contempt including jail time.

The right to choose a surname for your child is a constitutionally protected right. See O’Brien v. Tilson, 523 F. Supp. 494 (E.D.N.C. 1981); Jech v. Burch, 466 F.Supp. 714 (D.Hawaii 1979).. In O’Brien, the federal court struck down a North Carolina State law setting out naming requirements that conflicted with the desires of the parents to conform with Swedish and Spanish customs. In the O’Brien case, both parents agreed with the proposed surname of the child and were able to select the surname of their choice – even though at that time, NC required the father’s name be used.

When parents can’t agree, North Carolina statute specifies the naming requirements for a newborn. See N.C. Gen. Stat. § 130A-101. It is possible that this current statute is also unconstitutional as overly restricting the parents naming choices, this has not yet been tested in the courts. The Statute provides that:

If the parents are married at the time of conception or birth, the child’s surname must be the same as the husband unless the husband, mother (and father if paternity is determined to be a man other than the husband) agree otherwise. If the parents are not married and the putative father’s name is entered on the birth certificate, the surname is determined by the parents if they can agree and if they cannot agree, the surname is that of the mother. If the parents are not married and the father’s name is not on the birth certificate, the mother chooses the surname for the child.

In summary, if the parent’s agree, they can choose any surname they want. If the parents can’t agree and they are married, the child gets dad’s surname and if unmarried, the child gets mom’s surname.

These no contact orders are under the statutory section named “50C” and therefore are often known as “50C” orders as opposed to “50B” orders which are domestic violence protection orders (DVPO). A 50B or DVPO requires a special relationship between the parties (e.g., cohabitating, etc.) and domestic violence whereas a 50C is much less restrictive. A 50C does not require the plaintiff to be in any type of relationship with the defendant. But to get a 50C, the victim must have been stalking (following or harassing the victim to make that victim afraid for their safety, or the safety of a family member or personal associate and which causes that person to suffer substantial emotional distress) or there must have been nonconsensual sexual conduct (e.g., such as touching, fondling, or penetration of sexual organs or breast of another, for the purposes of sexual gratification or arousal).

Prior to its creation, a victim could bring criminal charges but could not obtain a civil restraining order against a stalker or person who caused nonconsensual sex. The 50C solved the problem of an individual stalking someone they had never met. Now a victim can do both.

The 50C does not have the “teeth,” however, of a 50B. A violation of a 50B can result in immediate criminal arrest and imprisonment whereas a violation of a 50C does not lead to immediate arrest. A violation of a 50C is punishable by contempt which can include jail time but only after a hearing to determine if the defendant is actually in contempt.

50C Orders can be temporary or permanent in nature. If granted, a temporary 50C civil no-contact order will be effective for not more than ten (10) days unless the Defendant consents to a longer time period. A permanent civil no-contact order will be effective for a fixed period of time not to exceed one year.

Very little case law exists on 50C Orders as the statute is so new. However, a recent 2008 case is interesting because it deals with “cyber stalking.”

Judge Foster in Madison County issued a civil no-contact order against Cindie Harmon on behalf of Linda Ramsey and her daughter for “cyber stalking” (see Ramsey v. Harman, 191 N.C.App. 146, 661 S.E.2d 924 (2008).

According to the Complaint, Ramsey had allegedly posted information on a website stating the daughter harasses other kids at school and being the reason other kids “hate to go to school.” Defendant’s website also featured: a voice recording of plaintiffs’ deceased mother and grandmother and references to Linda Ramsey as being a “crow,” “idiot,” and “wack.”

Judge Foster found that the “Defendant has harassed plaintiffs within the meaning of N.C. Gen.Stat. § 50C-1(6) and (7) by knowingly publishing electronic or computerized transmissions directed at plaintiffs that torments, terrorizes, or terrifies plaintiffs and serves no legitimate purpose.” However, the case was vacated on appeal because the Judge did not find that the Defendant had placed the Plaintiff in fear for her safety, or the safety of her family or close personal associates or had caused the person substantial emotional distress by placing that person in fear of death, bodily injury, or continued harassment and in fact had caused that person substantial emotional distress.

The Ramsey case suggests that a civil no contact order can be entered for cyber stalking but the proof required is greater than offered at the trial in that case.

Though it is a relatively new law, a 50C can help protect you. It broadens the court’s power to protect your safety and well-being.

These couples are facing huge damages according to the article in that they have already booked vendors and entered into other contracts from which they may not be able to extricate themselves.  Flowers, cakes, catering, hotels, etc. all cost money and a botched wedding may cost a couple tens of thousands of dollars.  According to one website, the average cost of a wedding in the Wilmington, NC area is between $17,122 and $28,536.  Some couples and their families spend significantly more.  Chelsea Clinton’s wedding reportedly cost between $3 and $5 million according to various websites.  Given the high stakes, couples should consult with an attorney for legal advice when planning their wedding but few actually do.

Contract law in North Carolina allows a lawsuit for breach of contract and in some cases, for specific performance.  It is important to consult an attorney for legal advice before signing a contract for these services.  The contracts that the vendor asks you to sign are often written in their favor after consulting with their lawyer.  But even so,  a vendor who breaches a contract may be subject to a lawsuit to recover damages and in some cases, may be ordered to perform the contract.

Just as a couple might be able to bring a lawsuit for breach of contract against a vendor who fails to perform, the would-be bride (or groom) may also be able to bring a lawsuit against their former fiancee for breach of contract.  North Carolina recognizes a claim by a person engaged to be married against another who breaks the engagement for “breach of promise to marry.”  Any person, who without justification, fails to carry through with a promise to marry is subject to suit for damages.  These claims have been filed in New Hanover County and upheld.  And a breach of promise to marry is one of the few contract claims that allows for punitive damages. 

The potential damages in a breach of promise to marry case are significant.  Couples planning marriage should have an attorney help guide them through the process to avoid the potential pitfalls.  Wedding planners are typically not licensed to practice law and therefore, can’t give legal advice about the contracts that need to be signed.  In addition to dealing with prenuptial agreements — some designed to help preserve a marriage — attorneys may now be helping couples deal with the legal issues associated with planning their wedding.

The theory is that like viruses which spread all over the world, a happily divorced person can cause the “divorce infection.”  There is some support for the theory in that there is a psycho/social phenomenon called “contagious behavior” through which there is an unconscious transmission of actions or emotions from one person to another (e.g., yawning).

The study by Rose McDermott of Brown University; James H. Fowler of the University of California, San Diego; and Nicholas A. Christakis of Harvard University suggests that divorce is contagious. They say that divorce can spread from one couple to their sibling, coworker, friends and even friends of friends.

It is based on the acceptability of the idea that divorce is an option to have happiness. According to Fowler, being friends with someone who gets a divorce makes you 147 percent (147%) more likely to get divorced. Once an individual Close relations could influence one’s perception on divorce and even on one’s decision making. Social behavior is contagious therefore divorce being socially acceptable becomes contagious.

For more info, see the ABC News Story at http://abcnews.go.com/GMA/HealthyLiving/divorce-contagious/story?id=11198347&page=1

I for one believe that it is difficult to say what exactly causes divorce.  I do believe it is more likely to be associated with the behavior of the spouses who are actually married to each other and desire the divorce than some third party who is simply happy they got divorced.

We welcome your comments.

Rice Law encourages all eligible military service personnel and their dependents to apply for the available funds.

As one might have guessed Eunice H. Chapman did not have the same legal standing and property rights as women have in modern society.  When Eunice married James Chapman she lost her property rights and legal standing as an individual.  As a result, when her husband attempted to reconcile only to be rebuffed by Eunice, her husband took the remaining property and their three children to the Shaker religious group. 

It is worth pointing out that Eunice did not want to reconcile for a couple of reasons.  First, James was notorious for drinking and wasteful spending, leading to him selling much of the couple’s property before abandoning his family.  Second, James claimed to have changed and wanted to live in Shaker society in which the couple would not live together alone as Husband and Wife.   Eunice was not interested in the type of life offered by Shaker society, and this refusal set off the battle between Eunice and the Shaker religious leaders of James’ group.

These events leading to Eunice’s extraordinary acheivement are very interesting.  At first, Eunice maintained custody of her three children until her husband and the Shaker leaders lured Eunice away from her home and then removed her children and the remaining property from the home.  For a couple of years Eunice attempted to settle custody with the Shaker leaders, without success.  Eunice was determined to get her divorce and custody so she sought the assistance of the New York legislature.  Around 1817, after years of talking in person and writing to the NY assemblymen, Eunice was given a “legislative divorce” from her husband, and no actual trial occurred.  Even Thomas Jefferson noticed and commented on Eunice’s case. 

Eunice may have received her divorce, but she did not have custody of her children yet.  She reportedly resorted to gathering a mob to go to the Shaker group that had possession of her three children.  Again, Eunice remarkably overcame the religious leaders by getting her three children back.

New York law later changed around 1966 so that a divorce was not solely dependent on proving adultery.  In the majority of states the law is either based on a “no fault divorce”, or the divorce law is dependant on a period of separation, as in North Carolina.  However, religion does still play a role in some custody disputes. (For more information see Richard Kern’s Article: Custody and Religion). 

The current news is full of interesting court cases about marital rights, multiple marriages, and interstate custody battles, but Eunice H. Chapman’s remarkable legal battle is truly noteworthy.  Litigants in 2010 are understandably frustrated by the amount of time required to get a divorce, but their divorce and custody matters usually only last one to two years.   In light of the many years spent in pursuit of Eunice H. Chapman’s legislative divorce the modern legal system has come a long way.

Source: For more information on Eunice H. Chapman’s story, read Ilyon Woo’s recently published book titled ”The Great Divorce”.

The number of persons aged 65+ in North Carolina increased 25.7% between 2000 and 2010. Between 2010 and 2030, North Carolina’s 65+ population is projected to increase by over 400,000 persons per decade, reaching 2.14 million by 2030. (Source: NC Office of State Budget and Management)

More and more boomers are faced with the daunting challenge of caring for their parents because the safety net for older adults is facing imminent threats. Social Security, Medicare and Medicaid programs will potentially decrease benefits to elderly Americans, thus increasing the responsibility of adult children to manage their parents lives as they struggle with Alzheimer’s disease and dementia. The United States government and local governments have attempted to adapt to these necessary changes, but the system has become even more difficult to understand. It is important to find an attorney that knows the relevant laws and system because the incompetency and guardianship process can be difficult and stressful.

As a hypothetical, imagine an elderly member of your family is showing signs of dementia. She cannot take care of herself and is living in unsanitary conditions, but due to the onset of dementia she refuses care. Moreover, due to her dementia she is confrontational about accepting assistance from you or anyone in her home. What do you do?

The hypothetical is becoming a common challenge due to the growing elderly population. In North Carolina, the legal system provides an option to have an individual declared incompetent and a guardian appointed, either an individual, corporation, or public agent. See N.C. Gen. Stat. § 35A-1112 and N.C. Gen. Stat. § 35A-1214. The person filing the petition is the petitioner, and the petitioner is often a family member that has the best interests in mind of their family member, the respondent.

An incompetency and/or guardianship hearing is conducted in front of the Clerk of Court as either a bench trial or a jury trial. The petitioner and respondent are entitled to present testimony and documentary evidence, so the proceeding is much like any other court case. In North Carolina, the petitioner pays the filing fee and sometimes the guardian ad litem costs, but the petitioner is not required to pay some of the costs as long as they have reasonable grounds for their action. Moreover, if the respondent is declared incompetent, the respondent or their estate will likely be charged the guardian ad litem’s attorney fees and costs.

The respondent will be appointed a guardian ad litem, which is a member of the local Bar. The guardian ad litem should perform a thorough study of the individual’s current mental state, but the guardian ad litem is unlikely to favor the petitioner because “The guardian ad litem shall present to the clerk the respondent’s express wishes at all relevant stages of the proceedings.” See N.C. Gen. Stat. § 35A.

At the first scheduled court date the petitioner can move that the Clerk order a physician to perform a multi-disciplinary report on the individual. The multi-disciplinary report is a basis for the Clerk to decide whether the respondent is incompetent in the opinion of a trained medical professional.

N.C. Gen. Stat.§ 35A-1112(d) provides in relevant part that “If the finder of fact, whether the clerk or jury, finds by clear, cogent, and convincing evidence that the respondent is incompetent, the clerk shall enter an order adjudicating the respondent incompetent.”

N.C. Gen. Stat. § 35A-1112(e) on guardianship provides in relevant part that “Following an adjudication of incompetence, the clerk shall either appoint a guardian” or transfer it to the appropriate county to appoint the guardian.

If the Clerk or jury finds the respondent incompetent, the Clerk will issue an Order setting forth the nature of the guardianship and name of the guardian, powers and duties of the guardian, and the identity of the agency, if any. The Clerk can also order a limited guardianship based upon the nature and extent of the ward’s incompetence. N.C. Gen. Stat. § 35A-1215. The best option for a guardian is an accountable and responsible individual capable of handling the ward’s financial, legal and medical issues.

These proceedings are contentious if attorneys are representing the parties. The process can be worthwhile if the petitioner has the best interests in mind so that the respondent can receive the care they need. All parties to this proceeding should take their role seriously by seeing the big picture of what is likely to occur, especially in the case of an elderly family member, as it is too late to begin this process once an incident occurs which leads to a quick death.

In some cases the solution is proper estate planning. All adults should have a Health care Power of Attorney, Durable Power of Attorney, and Will. In a properly drafted power of attorney the option is provided to nominate a potential guardian. This becomes important if a doctor declares their patient incompetent, at which point the patient’s power of attorney takes effect, including the nominated guardian. In this scenario, proper estate planning likely prevents a costly court battle.

The number of elderly North Carolinians with Alzheimer’s Disease is projected to increase from 170,000 in 2010 to 210,000 in 2025.  (Source: Alzheimer’s Association, 2010 Alzheimer’s Disease Facts & Figures) 

Disclaimer: This information is only applicable to North Carolina. We strongly recommend that you consult with a licensed attorney concerning your matter.

Author’s Note: The above is presented as general information. It is not exhaustive coverage of this issue but only a general explanation from an attorney’s perspective. The purpose of this article is to inform the non-lawyer of the issue in North Carolina. The reader interested in learning more should contact an attorney licensed to practice law in their jurisdiction.

Adoption is not just for the wealthy and Hollywood elite anymore. Adoption is now more affordable then ever with new and improved federal tax credits geared toward promoting adoption among middle income families.

An adoption tax credit for qualified adoption expenses is available to middle income families pursuant to Section 23 of the United States Internal Revenue Code. The adoption tax credit encourages adoption by helping families afford the attorney fees, court costs, and other expenses associated with adoptions and is now more accessible due to new legislation contained in the Health Care and Education Reconcilliation Act of 2010. The Credit does not apply to Stepparent adoptions. Besides the Credit, If your employer paid qualifying adoption expenses, they may be excludable from your gross income.

For purposes of this topic it is best to first differentiate the different types of adoption which could be applicable in a particular matter: 1) The Domestic adoption, an adoption within the U.S.; 2) International adoption -where a child born outside the U.S. is brought into the U.S.to live with the adoptive parents; and 3) the adoption of a special needs child

There is new legislation on the horizon. In both the Senate and the House of Representatives are Bills that could help promote adoption even further. Thereby promoting adoption for children so as to provide them with better lives and better future. H.R. 213: Adoption Tax Relief Guarantee Act of 2009

In 2009, the tax credit for adoption was increased amounting to $12,150.00. Now H.R. 3590 includes a provision to extend the adoption tax credit until December 2011 and it has increased tax credit to $13,170.00 for adoptions made after January 2010 and has an adjustment for inflation in 2011. This bill also allows the tax credit to be refundable. However, pursuant to the middle income family tax relief purpose of the Adoption tax credit;If your AGI is more than $182,180.00 then the tax credit amount is phased out and if your AGI is more than $221,180.00 then you cannot claim the tax credit or the exclusion.

In order to qualify, a person seeking to claim the tax creditmust adopt a child and pay the applicable expenses of the adoption, these expenses may include many none qualifying expenses as well as qualifying expenses. Nonqualified expenses are those that violate state or federal law, expenses for carrying out any surrogate parenting arrangement, expenses for the adoption of a spouse’s child (hence, stepparent adoptions do not qualify for the adoption tax credit), expenses for which you have received funds under any federal, state or local program, expenses allowed as a credit or deduction under any other federal income tax rule, expenses paid or reimbursed by your employer or any other person or organization or those paid before 1997. Given the nature and accessiblilty of the adoption tax credit, adoptions become more affordable for middle income families and children in need of a home are now more likely to be adopted by a family. Adoption is a great option for those persons and couples seeking to start a family and who, by biology or gender, cannot produce a child of their own. There are many children in the Unites States and abroad who could use parents and no longer should the cost of adoption alone hinder good parents from adopting good children.

   Disclaimer: We strongly recommend that you consult with a licensed tax attorney concerning your specific matter and circumstances.

Author’s Note: The above is presented as general information. It is not exhaustive coverage of this issue but only a general explanation from a layperson’s percpective. The purpose of this article is to inform the non-lawyer who may read current status of the adoption tax credit. The reader interested in learning more should contact an attorney licensed to practice law in their jurisdiction, specifically tax law.