Property Distribution in Divorce Proceedings
In the United States, divorcing parties, depending on their state of residence, are subject to equitable distribution or community property rules as it relates to the division of their property. Most states adhere to equitable distribution standards while a minority of states observes community property rules.
Community Property States
Community property encompasses assets that were acquired during the marriage, but excluding gifts and inheritances. Community property does not consider the named owner on the title of the property. It only takes into consideration that the property was acquired during the marriage thus included in the “marital community.” A minority of states adheres to community property rules during divorce proceedings including Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, Wisconsin, Arizona, California and Alaska (by agreement).
Equitable Distribution States
In an equitable distribution state, assets and earnings that are acquired during the marriage are divided equally at divorce. This mechanism is termed “equitable” because the means by which property division occurs is deemed “fair.” Under equitable distribution, the property acquired by both parties during the marriage is likely separated between the two parties, while property acquired before marriage or acquired by one party is usually distributed to the party with ownership. Therefore, a house bought by both parties during the marriage, a joint bank account and a jointly owned small business can be classified as marital property for the purposes of property distribution. Property owned by the parties is presumed as marital property unless it falls under the definition of separate property. In addition, if the court finds one party guilty of fault (i.e., adultery, abandonment, cruelty), the court may order one party to receive less than the equal share of the marital property. Even in this instance, although not equal, the distribution is deemed fair. North Carolina is an equitable distribution state.
Equitable Distribution in North Carolina
North Carolina adheres to equitable distribution rules of property distribution. In North Carolina, once marital property is classified, the court divides the property between both parties. However, the inquiry does not stop at identifying the marital property. North Carolina has promulgated twelve factors for which the court must analyze to determine the most equitable division. The factors include (§ 50-20):
- Income, property, liabilities of each party
- Any obligation of support from a prior marriage
- Duration of the marriage and the age and physical health of both parties
- Need for custodial parent to occupy or own marital residence
- Any expectation of pension, retirement rights that are not marital property
- Direct or indirect contributions made by one spouse for the education or development of the other
- Any direct contribution to an increase of value in separate property during the marriage
- Tax consequences of transferring property
North Carolina Divorce Attorneys
The attorneys at Powers Landreth PLLC have represented and advised clients on equitable distribution matters for many years. We have substantial knowledge in transactional and court processes as it relates to marital property distribution and we will aggressively represent you in your case. Contact us now for a consultation.
What You Need to Know About Prenuptial Agreements
What is a Prenuptial Agreement?
A prenuptial agreement is a premarital agreement that is entered into before marriage and sets out the terms of separation. Prenuptial agreements are usually enforceable unless the agreement was entered into under duress, fraud or the agreement sets out unreasonable grounds thus rendering it void as a matter of public policy. Prenuptial agreements are usually signed after the couple enters into an engagement and before the marriage ceremony. Individuals who want prenuptial agreements are usually wealthy individuals, individuals who have been married before or people of advanced age. As mentioned, prenuptial agreements can include any terms over which the couple wants to contract over unless it is illegal. Couples frequently contract over asset and debt distribution, liabilities and child rearing. Some agreements include unusual, but legal terms, surrounding monetary penalties after infidelity as well as who retains custody of a pet during separation. Although couples can choose to contract over a wide range of topics, there are standard requirements contracting parties must follow that will result in an enforceable contract.
What Constitutes a Valid Prenuptial Agreement?
Parties must agree to a written contract that is signed before the marriage in order to constitute a valid prenuptial agreement. Firstly, both parties must freely enter into the contract without any pressure or duress. Secondly, all terms must be reasonable and fair. The terms contemplated in the agreement should apply to both parties where possible as to not bias one party over the other. Further, terms that are too speculative, overly personal (i.e., how a spouse should keep his or her appearance), or far-reaching (i.e., agreements seeking to control the actions of non-parties). Each party must fully disclose all assets, debts and liabilities. This rule usually targets the higher earning spouse who does not want a lower earning spouse to have a clear picture of the sources of their wealth. This rule also applies to spouses who are in heavy debt and seek to hide the debt. Importantly, each party to the prenuptial agreement should hire his or her own attorney to seek legal advice. It is a conflict of interest and unethical for one attorney to represent the interests of both parties who are in effect, adverse parties, for the purposes of the agreement. Even if one party chooses not to hire an attorney, that party should know that they are entitled to an attorney if they so choose.
Common Prenuptial Agreement Disputes
Common disputes that arise out of prenuptial agreements come to bear during marital separation when one spouse seeks to invalidate the agreement. The arguments advanced for the invalidation of a prenuptial agreement can come from credible and non-credible parties. Therefore, each party seeking to invalidate an agreement is subject to a credibility review as long as the agreement bears their signature. Parties who wish to invalidate the agreement can do so if the party believes they did not freely enter into the agreement thus were subject to pressure or duress. Another ground for invalidation is where one party is not aware of their right to seek the advice of legal counsel before signing. In this case, the court will review the totality of the circumstances as well as the education and sophistication of the party to render a decision.
Charlotte Divorce Attorneys
The attorneys at Powers Landreth PLLC have represented and advised clients on prenuptial agreements for many years. We will fight for your right to have an agreement invalidated or enforced based your unique needs. We have substantial knowledge in prenuptial contract law and we will aggressively represent your interests. Contact us now for a consultation.Learn More
Considerations When Divorcing in North Carolina
North Carolina Permits Fault and No-Fault Divorce
When it comes to grounds for divorce, North Carolina is a hybrid state. It permits filings for both fault and no-fault divorce actions. It is important that divorcing parties are aware that North Carolina is a no-fault state as no-fault normally provides individuals with a speedy and egalitarian divorce proceeding. A contentious marriage or parties who have viable legal grievances against one another may not agree to a no-fault divorce proceeding. Therefore, knowing the differences between the two grounds of divorce is valuable to all parties involved. Under North Carolina law, the two broad bases for fault divorce are marital misconduct (i.e., adultery) or incurable insanity. The complete definitions of both broad grounds are defined via legal precedent and legislative interpretation. In the alternative, no-fault divorce is clearly stated under statute. Under the no-fault divorce statute, both parties must have resided in North Carolina for six months or more. The parties must also live separate and apart for one year.
One Year of Separation
The one year separation standard deserves further discussion. Parties involved in divorce litigation in North Carolina must fully comprehend the requirements and restrictions of this provision. North Carolina requires that the parties live separate and apart from one another for the entirety of the twelve months. The separation must be significant in proximity and excludes instances where the parties reside in different areas of the same dwelling home. However, the separation provision discounts isolated instances of sexual encounters between the parties. During the one-year period, it is imperative that the parties cease holding themselves out to the world as a couple. A majority of divorces initiated in North Carolina occurs under the one year separation rule.
Divorce from Bed and Board
Another form of divorce permitted in North Carolina is called divorce from bed and board. It is an outdated form of divorce rooted in English common law. Unlike the one-year of separation ground, divorce from bed and board does not qualify as absolute divorce. In the instance of a finalized divorce from bed and board action, the court grants the parties a perpetual separation and protection in their persons and property. Divorce from bed and board is a permanent separation of sorts. This option is usually for individuals who do not want to endure a full divorce due to financial or religious reasons. They see value in a decree that permits them to live separately and divide their property, while protecting the legal and religious union. This option is often utilized by people of advanced age who have been married for many years.
Your North Carolina Family Law Attorneys
Divorce can be a long and difficult process. You need a team of experienced attorneys who understand the nuances of family law. Please contact Powers Landreth PLLC if you have any questions. Our seasoned attorneys are on-hand to provide you with the help you need. Contact us now for your individualized consultation.
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.
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.
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.
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.
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.
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.
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.
Important Considerations for Prenuptial Agreements in North Carolina
The idea of executing a prenuptial agreement, also known as a premarital agreement, can be scary for any couple on the road toward marriage. But in all reality, prenuptial agreements are an increasingly common situation for couples to face. Moreover, couples can decrease the potential friction associated with a prenuptial agreement through an understanding of several important considerations.
Create a Prenuptial Agreements In Writing
As outlined in in Chapter 52B of the North Carolina General Statutes, prenuptial agreements must be made in writing and signed by both spouses. Without a valid writing signed by both parties, the prenuptial agreement becomes invalid and unenforceable.
Make Changes to a Prenuptial Agreement In Writing
Chapter 52B also provides that any changes to a prenuptial agreement in North Carolina must be made in writing and signed by both parties. The writing requirement applies if the spouses want to amend the prenuptial agreement to feature different terms. The same requirement applies if the spouses wish to revoke or cancel their prenuptial agreement.
Avoid Last-Minute Prenuptial Agreements
This might seem like common sense. But it is worth hammering home nonetheless. The less time couples leave for the negotiation and drafting of a prenuptial agreement, the more likely the chance of dispute. When couples rush to create a prenuptial agreement shortly before their wedding, the chance of leaving out important terms or considerations escalates exponentially. Plan ahead to ensure that you and your spouse feel comfortable with your prenuptial agreement.
Separate Premarital Assets from Postmarital Assets
The separation of premarital and postmarital assets can be extremely important. If spouses commingle or mix their assets from before and after marriage, the distribution of property during divorce can get muddled. In such circumstances, it can be difficult to prove which spouse owned what property before their marriage. That would make a prenuptial agreement exceedingly difficult to enforce.
Treat Your Future Spouse Honestly and Respectfully
Whenever creating a prenuptial agreement, it is paramount for future spouses to remember that they are about to get married. They want to spend the rest of their life together. If either spouse enters prenuptial negotiations forcefully or aggressively, they may do irreparable harm to their relationship. That is why it is crucial to act in an upfront, honest and respectful way throughout the creation and execution of a prenuptial agreement.
Speak With an Experienced Family Law Attorney Today
If you are dealing with a prenuptial agreement, divorce or other aspects of family law, it is important to contact an experienced attorney. Don’t hesitate to reach out to Powers Landreth PLLC in North Carolina for help.
How Settlement Negotiations Contribute to Amicable Divorce in North Carolina
The common perception of divorce is generally negative. Pop culture is rife with depictions of nasty divorces and spouses bickering over every single possession. Children are often caught in the crossfire, as their parents fight bitterly to take everyone possible from their former partner.
In order to avoid a costly and lengthy divorce battle in the courts, an increasing number of spouses are taking advantage of settlement negotiations. Using techniques from alternative dispute resolution, the settlement negotiation process helps amenable spouses work together to isolate a mutually beneficial solution to divorce.
The following sections will provide an overview of the settlement negotiation process in North Carolina.
What is the Settlement Negotiation Process in North Carolina?
As outlined in Chapter 50, Article 4 of the North Carolina General Statutes, settlement negotiations feature an out-of-court process for spouses who wish to divorce.
Instead of engaging in a fully fledged court process for divorce, settlement negotiations allow the spouses to resolve their issues directly. Stated otherwise, the spouses work with each other to design the parameters of their divorce.
Throughout the settlement negotiation process, the spouses and their respective attorneys will work together to plan the family’s post-divorce reality. If the spouses have children, they will need to determine child custody. In certain cases, alimony or other support may be appropriate. The spouses will also need to figure out the equitable distribution of the marital property that they share together.
Overall, the settlement negotiation process allows spouses to plan out all of the essential terms in a divorce, without the stress of court filings, appearances, and additional attorney’s fees.
How Do Settlement Negotiations Help Achieve Divorce in North Carolina?
Chapter 50, Article 4 of the North Carolina General Statutes outlines certain requirements necessary to achieve an out-of-court divorce. Assuming the spouses are able to agree amicably on all required divorce terms – including child support, property division, alimony, etc. – then there are a few remaining steps.
First things first, the spouses and their attorneys prepare a writing that summarizes their settlement negotiations. Both spouses and their respective lawyers must sign the writing. Without all required signatures, the writing is not valid or effective.
Secondarily, the writing must specify all of the agreements and understandings from the settlement negotiation process. This means that the writing must spell out in specific terms all agreements concerning alimony, child support, property division or other relevant terms.
Let Us Assist You Today
Whether you are dealing with settlement negotiations, it can be valuable to seek legal assistance from a skilled family law attorney. Don’t hesitate to contact Powers Landreth PLLC in Charlotte for help.
Examining Marriage and Divorce Statistics in North Carolina
The North Carolina Department of Health and Human Services (DHHS) publishes a report each year detailing the number of marriages and divorces. The topic for exploration today is an analysis of DHHS data on the number of North Carolina marriages and divorces over the past five years.
It is crucial to note that 2017 is not yet available. As a result, the five-year period for analysis will be 2011 to 2016. The following sections will offer a statistical breakdown of DHHS data for the statewide resident population, total divorces, divorce rate, total marriages and marriage rate.
North Carolina Resident Population
In terms of resident population of North Carolina, the DHHS reported the following data.
- 2011: 9,651,025
- 2012: 9,747,021
- 2013: 9,845,432
- 2014: 9,940,387
- 2015: 10,042,802
- 2016: 10,146,788
Over the selected five-year period, the resident population of North Carolina increased by 495,763. The data indicates a lack of significant deviation during this time period. Overall, the resident population in North Carolina rose steadily and consistently from 2011 to 2016.
North Carolina Divorces and Divorce Rate
In terms of total divorces in North Carolina, the DHHS reported the following data.
- 2011: 36,044
- 2012: 36,346
- 2013: 34,218
- 2014: 33,797
- 2015: 30,816
- 2016: 32,960
In terms of the divorce rate in North Carolina, DHHS reported the following data.
- 2011: 3.7
- 2012: 3.7
- 2013: 3.5
- 2014: 3.4
- 2015: 3.1
- 2016: 3.2
Over the selected five-year period, total divorces decreased by 3,084 and divorce rate fell by 0.5 percent. There was a relatively large drop in both total divorces and divorce rate in 2015. Overall, total divorces and divorce rate decreased incrementally from 2011 to 2016.
North Carolina Marriages and Marriage Rate
In terms of total marriages in North Carolina, the DHHS reported the following data.
- 2011: 64,789
- 2012: 64,814
- 2013: 64,504
- 2014: 68,801
- 2015: 70,125
- 2016: 70,699
In terms of marriage rate in North Carolina, the DHHS reported the following data.
- 2011: 6.7
- 2012: 6.6
- 2013: 6.6
- 2014: 6.9
- 2015: 7.0
- 2016: 7.0
Over the selected five-year period, total marriages increased by 5,910 and marriage rate rose by 0.3 percent. From 2011 to 2012, both total marriages and marriage rate remained mostly constant. After a relatively sharp increase in 2014, the numbers seem to have leveled off again. Overall, total marriages and marriage rate increased incrementally from 2011 to 2016.
Let Us Help You with Your Case
If you are dealing with divorce, child custody or related concerns, there is no substitute for an experienced an experienced family law attorney. Reach out to the skilled Charlotte legal professionals at Powers Landreth PLLC for help today.Learn More