Assigning one judge to the matter is the cornerstone of any family court system. Having one judge assigned to all of a family’s matter allows that judge to familiarize themselves with the specific needs of that family and better address the issues specific to that family. There can be many issues facing a family going through dissolution of the marriage – child support, divorce from bed and board, child custody, alimony, equitable distribution, and absolute divorce are several such claims that may be prompted by a separation of the parties. Pursuant to these claims, there are numerous motions and/or interim solutions which could become relevant based upon the circumstance. For instance, ex-parte child custody, temporary child custody and child support, interim distribution, temporary restraining orders, post-separation support, motions and orders to show cause in contempt, and/or motions to compel may become necessary. Many of the facts in each motion or claim may overlap, such as: Post-separation support and alimony, or temporary child custody and child custody. In order to prevent disparate outcomes, long recounts of a family’s history, and uneven applications of the law between claims and so as to provide the opportunity for tailored rulings specific to the details of a particular family, the family court system requires that one judge hear all the issues of one family whenever possible. Having one judge assigned to all of a family’s matter allows that judge to familiarize themselves with the specific needs of that family and better address the issues specific to that family.

In addition, when one judge is assigned to a matter, that matter stays on the judge’s calendar until resolved. Parties are unable to continue a matter so as to get a “favorable” judge or to delay a matter simply to cause the other party hardship. Furthermore, one of the penultimate goals of family courts are to resolve the issues of a family within one year. This one-year goal coupled with the restrictions on continuances cuts down the amount of continuances which will be allowed or tolerated by the Court. According to the 2011 Annual Report on NC’s Unified Family Court Programs which looked at the duration and length of cases over a seven year period, in counties with a family court system, only 22 percent of domestic cases were not resolved within a year as compared to 47 percent in non-family court counties. The seven year average age for cases in family court is 108 days whereas, in non-family court jurisdictions, the average age over the last seven years was 332 days.

Many family courts employ a simple and predictable calendaring system. For instance in New Hanover County, North Carolina, judges typically have a two-week session in each month dedicated to family issues. Each judge’s session is published in advance and the cases on the calendar are organized at an advanced (generally) calendar call. If a matter is not able to be heard during that session, the family court administrators move it to the next session and it remains on the calendar from session to session until it is heard by the Court. For smaller or quicker matters, some judge’s will schedule shorter sessions when time allows.

Since 1999, Family Courts in North Carolina have been providing parents with tailored and efficient resolution of their family law issues. Despite the numerous advantages of a family court system, as of late the family court has been under attack in the North Carolina legislature. Recent moves by the legislature to cut funding to the family court system in North Carolina only means an increase in inefficiency, time, and hardship for the family’s of North Carolina. Rice Law, PLLC, encourages all parents and spouses in North Carolina to write your state representative and let them know that funding for family courts in North Carolina (as well as other specialized courts in North Carolina) should not be cut when there are proven advantages to them being retained.

There appears to be a trend to treat household pets more like children than property where courts determine the better custodian for the pet and grants visitation rights to the other “parent.”  North Carolina is not embracing this trend.  Pets are considered property in North Carolina.  In divorce proceedings, the pets are valued and divvied up like household goods without considering the pet’s best interests or who would be the better custodian.² One exception to this, however, is when there is domestic violence.  Our legislature enacted a law that allows the family pet to be awarded to the victim of domestic violence as part of a domestic violence restraining order.³

In putting a value on the family dog, our courts consider replacement costs only and not the intrinsic value of the animal.⁴    Therefore, if the parties can’t agree on who gets the dog and an equal distribution of property is made by the Court, the party who did not get the dog will not get extra property as a result.

A few years ago, a New Hanover County attorney brought a custody action regarding a dog under the statutes addressing child custody.  The trial court was not amused, considered it an improper action, and the action was promptly dismissed.

Even though our courts are slow to recognize the needs of the pet, individuals often settle the issue with a pet custody agreement which defines the sharing arrangement, visitation and may even provide financial payments for the benefit of the dog or cat.  Such agreements are contracts between individuals and can be made whether or not the parties were married.

Endnotes:

up¹http://www.spokesman.com/stories/2012/mar/03/divorce-lawyers-see-increase-in-pet-custody-cases/

up²See Jones v. Craddock, 210 N.C. 429,  431,  187 S.E. 558, 559 (1936); Davis v. Sineath, 129 N.C. App. 353, 354, 498 S.E.2d 629, 630 (1998) (dog valued at $550.00 distributed as marital property); Lawing v. Lawing, 81 N.C. App. 159, 164, 344 S.E.2d 100, 105 (1986) (five cats divided as marital property worth $25.00).  However, in contrast our Legislature has enacted laws to prohibit cruelty to animals (e.g., N.C. GEN. STAT. § 19A-1 et. seq.) and to encourage suitable care for an animal but such considerations are improper in divorce proceedings.
up³See N.C. GEN. STAT. § 50B-3(a)(8)
up⁴Shera v. N.C. State Univ. Veterinary Teaching Hosp., ___ N.C.App. ___, ___ S.E.2d. ___, 2012 WL 539989 (2012).

The Federal Government has established specific rules concerning social security benefits. If you were married for at least 10 years, you may be able to draw social security based on your ex-spouse’s earnings record (if their record would provide you a higher payment than your own record).  If your divorced spouse remarries, he or she generally cannot collect benefits on your record unless their later marriage ends (whether by death, divorce or annulment).  See the Social Security Administration website for more details.

Social Security disability benefits intended to replace the loss of earning capacity are considered the separate property of the disabled person in North Carolina and are not subject to division. See Cooper v. Cooper, 143 N.C. App. 322, 326, 545 S.E.2d 775, 778 (2001).

The article notes that the veracity of the story was not verified.  In it, the husband claims he loaded the app, “Find My Friends,” to his wife’s iPhone without her knowledge or consent. The application uses the iPhone’s built-in Global Positioning System to broadcast its location to a selected group of friends.  By enabling the GPS broadcast without his wife’s knowledge or consent, had he been in North Carolina, it could conceivably be a breach of privacy actionable under tort law (although there are no current appellate cases on this issue in North Carolina).

We expect these type of technology issues — especially whether it is an invasion of privacy — to become more prevalent in family law cases over the next few years.

Read the full story at Yahoo News.

Sarah Files for Divorce and John Keeps the Majority of the Money

John worked for a company for many years and had built up a 401(k) worth three hundred thousand dollars. His wife, Sarah, filed an action against him for an absolute divorce using some forms she found online. When John came to me for legal advice, we made a list of the property that he and his wife acquired during the marriage.

• Former Marital Home [Joint] $ 245,000
• Mortgage [Joint] ($ 175,000)
• 401(k) [John] $ 300,000
• His Car [John] $ 14,000
• Debt on His Car [John] $ 0
• Her Car [Sarah] $ 18,000
• Debt on Her Car [Sarah] ($ 8,000)
• Checking Account [Joint] $ 2,300
• Net Marital Estate $ 396,300

If either filed for equitable distribution and the Court agreed that the above listing accurately represented the property acquired during the marriage, it would be presumed equitable for each side to get property worth ½ the overall value or $198,150 each. However, if a divorce occurs without each side properly preserving their claim for equitable distribution then property vests based upon title. Therefore, under the facts above, John would keep his 401(k) and car worth $314,000 and Sarah would keep her car and the debt on her car worth $10,000. The joint property would be held as tenants in common with each having an undivided interest in the whole. John could sue Sarah after the divorce to divide the house with $70,000 in equity and potentially have a total of $349,000 (1/2 the equity in the house plus the 401(k) and car) while Sarah would only get $45,000 total. In theory, the checking account could also be divided through a petition to partition personalty but it probably would not be worth the cost. So it is to John’s advantage to get divorced without suing for equitable distribution. Actually, he comes out better by over one hundred and fifty thousand dollars!

Very little of it was jointly titled and most of it was in John’s name. The 401(k) like most retirement plans was solely in his name. My advice for his particular case was “let her get the divorce and then we will file a petition to partition the real property.”

The entry of a divorce judgment forever cuts off claims for the division of marital property (equitable distribution) and spousal support (post separation support and alimony). The failure to specifically apply for these rights prior to the entry of a divorce judgment acts as a waiver of these rights and they are lost forever. North Carolina law, N.C. GEN. STAT. § 50-11(e), states that “an absolute divorce obtained within this State shall destroy the right of a spouse to equitable distribution.” To preserve claims for equitable distribution and alimony, a valid claim must be asserted before entry of the divorce.

So be careful when filing for divorce in North Carolina. It is worth it to consult with an attorney and determine the best option for your particular situation. A simple divorce could cost you hundreds of thousands of dollars! It also cuts off alimony rights and if John would owe Sarah alimony in the above hypothetical, she would be in even worse shape!  In this case, Sarah made a huge mistake.

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 × 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 × 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.

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.

Gottman’s claim to fame was putting couples in a room, and video taping 57 couples interacting with each other. By observing their facial expressions and interactions, Gottman developed a system to predict which couples would divorce.

And he could do so with blinding accuracy. The group of therapists, counselors and others, could only predict the divorce possibility 53.8% of the time.

Specifically, he watches out for certain corrosive interactions that, left unchecked, will kill a relationship. He calls these the “Four Horsemen”: criticism, contempt, defensiveness, and stonewalling.

Since he published his research, some have been critical of his approach. His predictive model was developed looking backward. For the 1998 study, which focused on videotapes of 57 newlywed couples, he waited six years to check on their marital status and then created a computer model using the video data to “predict” what had already occured. “He asked the computer, in effect: Create an equation that maximizes the ability of my chosen variables to distinguish among the divorced, happy, and unhappy.”

Notwithstanding the criticisms of his prediction model, Gottman and his institute have certainly made significant contributions to the study of marriage and divorce.

Gottman continued his research and discovered two periods to be the “most critical for the survival of marriages: (a) the first seven years of marriage, during which half of all divorces are known to occur, and (b) the period during which the first child reaches 14 years of age, which has been suggested as a low point for marital satisfaction in the life course.”

The Institute has determined there are strong negative consequences to separation and divorce on the mental and physical health of both spouses. These include increased risk for psychopathology, automobile accidents, and physical illness, suicide, violence, and homicide. In children, marital distress and disruption were associated with depression, withdrawal, poor social competence, health problems, poor academic performance, and a variety of other difficulties.

Gottman offers weekend workshops in Seattle, Washington to help couples improve their marriage. He teaches seven principles to make marriage work. Workshops based on his research closer to North Carolina are available in the Washington, DC area.

Other couples retreats, marriage enrichment events and seminars include those offered by the North Carolina Baptists , the North Carolina National Guard, The Catholic Diocese of Raleigh, and others.

Certainly improving our marriages is a positive step toward curbing all those negative effects of divorce.

Luke says, “All right, I ‘ll give it a try.”
Yoda responds, “No. Try Not. Do, or do not. There is no try.”

Yoda’s right. There is no try!

We often connect the word try with an expectation of failure. The use of the word alone signals that the speaker expects that you may fail. Yoda ‘s imperative to do or do not has a power that the word “try” simply does not convey—don’t waste time with fruitless efforts.

In the context of marriage, separation and divorce, there is also no “try.” While it is true that in the context of a relationship, your partner can hinder your efforts and perhaps derail them entirely, you still remain responsible for your own actions. You can succeed or fail, but you can never try.

If you want to improve your marriage, take steps to improve your marriage. Ask your spouse to attend marital counseling, go to counseling alone if they refuse, read the Love Dare, and do something positive but don’t “try.”

If you need to end your marriage, download our free eBook, Steps to Divorce, begin our free online divorce workshop and plan your future.

The dependent spouse depends upon their supporting spouse to pay the bills for the food, home, etc., which can lead to a lack of control over their life. In the event the dependant spouse intends to separate from the supporting spouse, they should consult an attorney to learn about their many options. The options below are not exhaustive and will not apply to every situation.

In the event the supporting spouse will not leave the marital residence, the dependant spouse and children should seek a temporary home so that a Complaint and Motions can be filed after the parties separate. The temporary home may be required for a couple of days or months. Before leaving the residence, the dependant spouse should make copies of important documents, refrain from arguments, and limit computer activity. It is necessary to shut down social networking pages on the day you leave the residence, and take your computer to a shop to ensure that spyware was not installed by your spouse. However, the dependant spouse should leave immediately in a case of domestic violence and, in this situation, a local legal aid office and shelters for victims will usually provide free assistance.

In an attempt to provide stability to the dependant spouse and children, an attorney can file a complaint, motion for interim distribution, and motion for sequestration. In these documents an attorney can request that the dependant spouse be supported financially, and the Court can order that the supporting spouse be removed from the former marital residence so that the dependant spouse can return to the residence. The Court can order an interim distribution of marital and separate property pursuant to N.C. Gen. Stat. §50-20(i)(1) (Distribution by Court of Marital and Divisible Property), which provides as follows:

(i)(1) Unless good cause is shown that there should not be an interim distribution, the Court may, at any time after an action for equitable distribution has been filed and prior to the final judgment of equitable distribution, enter orders declaring what is separate property and may also enter orders dividing part of the marital property, divisible property or debt, or marital debt between parties.

For more information about equitable distribution, see the property settlement page on our Website.

se·ques·tra·tion [see-kwes-trey-shun], legal definitions:

1. Seizure of property.
2. A writ authorizing seizure of property.

The order for sequestration is similar to a temporary restraining order. It is a common law remedy that is used on a regular basis in this type of situation. A Judge can order the property to be sequestered with or without the presence of the supporting spouse or opposing counsel. It is highly recommended that the dependant spouse change the locks on the home as soon as they return to the former marital residence. If the supporting spouse returns to the former marital residence, the dependant spouse can request that the police enforce the Court’s Order and eject the supporting spouse from the property. Another option is to file charges for domestic criminal trespass, in which case the accused might be taken to jail. For more information about protective orders, see the domestic violence page on our Website.

A dependant spouse may choose to have an attorney prepare a separation contract or Separation and Property Settlement Agreement (SAPS). These two documents can settle some important issues. The agreement should attempt to maintain the status quo of the current child custody arrangement. For instance, the dependant spouse would maintain primary custody of the children throughout the week, while the supporting spouse visitation on some nights and every other weekend. The amount of custody and/or visitation of the supporting spouse will vary according to their work schedule. This type of custody arrangement can provide a stable environment for the children. Of course, the agreement should provide for interim financial support for the dependant spouse in order to provide a safe home and necessities for the children. The agreement can even contain a clause providing for “Temporary Possession of the Marital Residence.” See the sample separation contract on our Website.

These are a few of the legal options provided for stay-at-home parents and dependant spouses in North Carolina. To learn about additional options, get the free eBook on Separation & Divorce. In all of these cases the children’s best interests and safety should be the primary concerns of the parents.

The above is presented as general information on separation and interim distribution and sequestration. It is not exhaustive coverage of these issues but only a general explanation from an attorney’s perspective. Seek help from a licensed attorney for more information.