January 2018

Consider These Seldom-Discussed Separation Agreement Terms

A separation agreement is usually the first legal instrument a divorcing couple will agree upon. Although the parties are still legally married, the separation agreement mandates and directs the affairs of the parties while they are living separately. The agreement is crucial as it can set the tone for the final agreement that is incorporated into the divorce decree. Parties should be hard-pressed to agree to terms that are the most fair to their wants and needs. There are a few important terms that are seldom discussed when one thinks of a separation agreement. These terms can also be some of the most contentious during divorce proceedings. It can also make for a speedy proceeding if the parties are able to decide on them during the separation phase.

Living Arrangements

During a marriage, most couples will purchase a house together and share joint ownership. A house may be the largest and most expensive asset a couple may own. During separation, one spouse usually has to leave the marital home. If the parties are financially stable, they can agree to keep the home and one party can obtain a separate dwelling place. Some parties may agree to sell the home and share the profits. If both parties have practical, emotional or financial attachments to the home, the may both decide to remain in the home for the duration of the divorce proceeding. In this instance, the parties would be wise to include terms regarding the rules of cohabitation during separation.

However, parties who are divorcing in North Carolina must live separate and apart to qualify under the one-year of separation divorce ground. This means that they must live in separate dwelling homes. In addition, North Carolina is an equitable distribution state, therefore, if the home was purchased by one spouse before the marriage and the financials of the home was not commingled in the marital finances, then one spouse will receive the home as theirs. The equitable distribution analysis will government much of the property owned by the spouses.

Parenting

When children are involved in a divorce, the more complex a separation agreement becomes. It is important to note that the parenting clause is one that will constantly change depending on the age and needs of the child at any given point. Initial terms on legal and physical custody can test the agreement during the separation period. A judge may adopt the terms when the divorce is final. For this term, the parties may agree on a plethora of items governing the child’s life. This includes agreement on how to raise the child, activities in which the child will participate, the child’s living arrangements, the child’s health and wellness, etc. Therefore, the parties can negotiate and contract on just about any concept concerning the child’s well-being.

Medical and Dental Insurance

Medical and dental insurance terms are not an intuitive detail to contract around when considering a separation agreement. However, they are important for all parties involved. The parties involved may want to determine whose health and dental plan a child will benefit from during the duration of the divorce proceeding and after. If one party benefits from the other’s insurance plan, then the parties should agree on whether the dependent party will remain on the plan. As part of child or spousal support, the parties may also determine how any uncovered medical treatments will be handled in the future.

Charlotte Separation Attorneys

A separation agreement is one of the most important aspects of a divorce. You deserve an attorney who will guide you through the process and anticipate crucial steps that are commonplace in divorce proceedings. When a separation agreement covers many areas governing the lives of the parties, the less dispute resolution is involved in the process. The experienced North Carolina attorneys at Powers Landreth PLLC are here to help determine whether a separation agreement is right for you. Contact us  now for a consultation.

Resources:

ncleg.net/EnactedLegislation/Statutes/PDF/ByChapter/Chapter_50.pdf

ncga.state.nc.us/gascripts/statutes/statutelookup.pl?statute=50-20

Divorce Mediation in North Carolina

What is Mediation?

Mediation is an out-of-court alternative dispute resolution method that takes the place of tradition in-court proceedings. Mediation focuses on collaboration and discovering common ground within a dispute. Generally, mediation is a voluntary process; however, some states mandate mediation as a starting point for certain disputes. Even though mediation is generally a voluntary process, the agreement that is drawn as a result of the mediation is binding on all parties involved. Mediation has grown to become a workable dispute resolution process for separating and divorcing parties.

The goal of mediation is to create the best possible outcome utilizing fairness and strategies that will facilitate harmony in long-term relationships. Parties who engage in the mediation process will find that it is less adversarial and more equitable. Further, parties are able to reach their settlement goals more readily when they opt for mediation.

There are many benefits of mediation, including the following:

• Less expensive than traditional court proceedings;
• Mediation usually ends with a settlement on all divorce issues;
• Parties can still have their attorney present;
• The parties have control over the outcome of the process; and
• A trained mediator will help facilitate the dispute resolution process.

The Mediation Process

Parties can opt for mediation before or during the divorce court proceeding. A couple may choose to use mediation as a means of negotiating a separation agreement, parenting schedules, property distribution and child custody. Some states, including North Carolina, restrict the issues around which parties may mediate. In North Carolina, mediation involving a history of domestic violence is restricted. As discussed above, mediation is generally voluntary. However, North Carolina law mandates that all child custody disputes start with mediation. It is obvious that mediation is valued as a more desirable process when children are involved. This is not surprising as mediation seeks to consider the best interests of all parties involved in the dispute.

In North Carolina, the mediation process starts with orientation where all sides of the dispute are apprised about the process. At this point, the court or the parties will choose a mediator to facilitate the mediation. The parties are then separated so that the mediator gets a sense of what the issues are on all sides. Some mediation sessions will remain segregated with the mediator as the go-between. In the alternative, some sessions are integrated. If the parties come to an agreement, they must sign a contract and the document is presented to the court for certification. If the parties do not come to an agreement (which also happens), then the court will set a date for an adversarial hearing.

Charlotte Divorce Attorneys

Mediation is another way to deal with the issues in your divorce case. There are many benefits to the mediation process as discussed above. The attorneys at Powers Landreth PLLC have years of experience navigating the North Carolina mediation program. We know that dispute resolution is important, especially when children are involved. The seasoned attorneys at Powers Landreth PLLC are here to guide you through the divorce and child custody mediation processes. Contact us now for a consultation.

Resources:

nccourts.org/Citizens/CPrograms/Child/Documents/DVPolicy.pdf

ncleg.net/gascripts/statutes/statutelookup.pl?statute=7a-494

Exploring Common Law Marriages in North Carolina

Common Law Marriages

A common law marriage is a legally recognized marriage that is permitted in certain jurisdictions and does not require a license or a ceremony. In these marriages, the state will recognize when two people live together as spouses and hold themselves out as a married couple. North Carolina does not recognize common law marriage arising in the state. However, a few states, including Iowa, South Carolina, and Colorado, and Texas do recognize common law marriages. For example, to have a valid common law marriage in Texas, the two individuals have to (1) agree to be married, (2) live together as husband and wife, (3) and show others that the marriage exists (i.e., hold themselves out as married).  In Alabama, each person must show an intention to be married and there must consummation. In a recent development, Alabama has abolished common marriages arising after January 1, 2017.

Although a common misconception, a couple need not enter the common law marriage for a specific time frame to gain recognition for common law marriage. They must only fulfill the qualitative requirements under the state statute.

North Carolina Recognizes Valid Common Law Marriage Arising Elsewhere

As discussed, North Carolina does not recognize common law marriage that arises or is commenced in the state. The only type of marriage that is valid in North Carolina requires a solemnization ceremony presided over by a minister or other persons authorized by law to perform marriage ceremonies. However, North Carolina will recognize common law marriages that arose in other states that recognize common law marriages. Therefore, spouses who commenced their marriage in South Carolina will not lose that recognition if they move to North Carolina so long as the marriage is still valid under South Carolina law and the couple can establish the date on which the marriage commenced. If a common law marriage was commenced in South Carolina, but it is found that the marriage was improperly formed, North Carolina has the right to withhold recognition of the marital relationship. Further, North Carolina has the authority to ensure that all benefits flowing from the marital relationship cease.

The Benefits of Having Common Law Marriage Recognized

The recognition of a common law marriage seems to become a crucial sticking point when the marriage ends, rather than during the marriage.  Still, recognition can bring about benefits during the marriage. These benefits can include access to health insurance and government or military-related entitlements that are based on the marital relationship. All the same, spouses who do not formally marry find importance in the recognition of a common law marriage if one of the spouses dies or when there is a dissolution of the relationship. In order to be divorced, one has to be married. If there is a recognition of a marriage, each spouse can reap the benefits of getting what they have invested into the relationship. The benefits can come in the form of alimony, property distribution, and standard of living considerations. In the same respect, if one spouse dies, recognition of the relationship as a marriage will entitle the surviving spouse to property under probate law in the case the deceased spouse did not leave a will. Again, although a couple cannot commence a common law marriage in North Carolina, it is important for them to know that North Carolina law will honor valid common law marriage arising in another state. The value of understanding the nuances of this law, can make a world of difference.

Do You Need Legal Assistance?

If you have any questions about a family law case or need general legal advice, please contact Powers Landreth PLLC in Charlotte. We have our experienced attorneys on-hand to provide you with quality legal representation. Contact us for your consultation.

Resources:

guides.sll.texas.gov/common-law-marriage

al.com/news/index.ssf/2016/12/common_law_marriage_in_alabama_1.html

ncga.state.nc.us/EnactedLegislation/Statutes/PDF/BySection/Chapter_51/GS_51-1.pdf

Components of Child Support Costs in North Carolina

Today the examination will focus on the different components of child support in North Carolina. Before progressing any further, it is vital to note that the North Carolina courts will always try to act in the best interests of the child. If need be, the courts will take unorthodox actions to protect the children involved in any family dispute in North Carolina.

That being said, the North Carolina courts rely on three primary factors to determine child support: (1) gross monthly income, (2) childcare expenses and (3) insurance and healthcare expenses.

Gross Monthly Income

Under the North Carolina Child Support Guidelines, a fundamental component of child support involves the combined monthly income of both parents. North Carolina employs a table-based worksheet to determine the appropriate amount of child support.

The child support worksheets combine the total monthly income from both parents. Then the worksheets apply a multiplier for the number of children. The intersection of income and number of children represents the appropriate child support payment. Though it should be noted that the worksheet does account for the childcare as well as insurance and healthcare costs detailed in the following sections.

It is important to note that there are different worksheets for the varying types of child custody, including sole and joint custody. This ensures that the parents achieve an appropriate cost distribution to care for their children.

Childcare Expenses

Another aspect of the child support calculation in North Carolina involves childcare expenses. This category addresses the fundamental costs associated with raising a child, including but not limited to food, rent and transportation.

The childcare expenses category can also account for certain parental obligations as well. For example, if a parent has to spend money on daycare to search for a job, then they can add those costs to childcare expenses. The same can apply for money spent while the custodial parent attends school or other classes. In either case, the North Carolina courts have discretion to determine whether such costs should be included in childcare expenses.

Insurance and Healthcare Expenses

This category of child support in North Carolina centers on the costs of providing insurance and healthcare for the children involved. Expenses in this category typically include medical, dental and vision health insurance. This category also includes other healthcare costs that either parent incurs on behalf of the children involved.

Let Us Help You with Your Case

Whether you are dealing with child support, divorce or other aspects of family law, a proficient family law attorney can help you analyze important details and plan an appropriate strategy for a favorable outcome. Contact Powers Landreth PLLC in Charlotte, North Carolina for help today.

Resource:

nccourts.org/Forms/Documents/1226.pdf