Charlotte Divorce Lawyer Tag

Abuse Victim Seeks to Amend North Carolina’s One-Year Divorce Requirement

At first blush, the North Carolina law requiring a one-year separation period before a court can grant divorce has some saving qualities. One might view the law as creating the space and time for couples to reconsider divorce, which is especially important when children are involved. However, for certain individuals, the one-year waiting period is quite a burden.

One-Year Waiting Period May be Incompatible for Certain Marriages

A 33-year-old woman living in North Carolina separated from her husband and was able to provide solid evidence to a court to warrant a restraining order. Included in her evidence were photos of injuries she claims she sustained from the abuse of her husband. Even with a documented history of abuse and a restraining order, the woman must wait one year before seeking a divorce. During the interim, she had to pay her  husband’s health insurance. She also had to endure the psychological distress of knowing that the person who allegedly abused her was legally recognized as her husband. Possible abuse victims like this woman fear for their safety when the state requires prolonging a legal relationship, which brings them pain and suffering. The issue with the one-year waiting period is not limited to psychological pain. Like the woman’s payment of her estranged spouse’s health insurance, sustained legal recognition of the marriage carries certain obligations and requirements abuse victims should not have to maintain. In one respect, the obligation may prove unethical and dangerous.

Domestic Abuse Victim Seeks to Amend G.S. 50-6

The woman’s ordeal prompted her to create a petition requesting North Carolina Attorney General and the state General Assembly to amend G.S. 50-6. The petition seeks an amendment of the one-year waiting period for established abuse victims. The woman’s campaign garnered national attention after her story was featured on Now This, a national news outlet. The campaign sought to highlight the counterintuitive nature of the law. For example, it is rather unethical to require a spouse to remain married to an individual who has been convicted of stabbing him or her. Proponents of amending G.S. 50-6 find no defensible argument requiring an abuse victim to continue a marriage that is dangerous to his or her well-being. North Carolina is not the only state with a waiting period requirement. Other states (Illinois, Maryland and Pennsylvania) actually have a two-year waiting period if the divorce is not mutually consensual.

How Divorcing Abuse Victims Can Manage North Carolina’s One-Year Requirement

As an abuse victim seeking a divorce, the best thing you can do is get out of harm’s way. This includes obtaining a domestic violence protective order and ceasing cohabitation. Even though G.S. 50-6 is still the law in North Carolina, there are additional safeguards abuse victims can request to facilitate their safety and tamper the obligations of the legally recognized marriage. This includes requiring that law enforcement remove the defendant from a shared home, ordering the defendant to stay away from the plaintiff’s home, school or place of work,  ordering the defendant to pay his or her own insurance, and ordering the defendant to forfeit any firearms or other weapons. Abuse victims must keep well-documented records of all encounters with their abusive spouse. In addition, hire an experienced family law attorney to aggressively fight for your interests during this critical juncture.

Charlotte Divorce and Domestic Abuse Attorneys

At Powers Landreth PLLC we will provide zealous representation to ensure that the law works on your behalf. Even though G.S. 50-6 is still the law in North Carolina, our experienced family law attorneys can advise you and craft legal strategies to facilitate your one-year transition.  Contact us now for a consultation.

Resources:

womansday.com/relationships/dating-marriage/a16637660/north-carolina-divorce-domestic-abusive-petition/

ncleg.net/enactedlegislation/statutes/html/bysection/chapter_50/gs_50-6.html

change.org/p/north-carolina-general-assembly-domestic-violence-victims-shouldn-t-have-to-wait-a-year-and-day-to-divorce-their-abuser/u/22328283

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):

1. Income, property, liabilities of each party
2. Any obligation of support from a prior marriage
3. Duration of the marriage and the age and physical health of both parties
4. Need for custodial parent to occupy or own marital residence
5. Any expectation of pension, retirement rights that are not marital property
6. Direct or indirect contributions made by one spouse for the education or development of the other
7. Any direct contribution to an increase of value in separate property during the marriage
8. 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.

Resources:

law.cornell.edu/wex/community_property

law.cornell.edu/wex/equitable_distribution

ncleg.net/enactedlegislation/statutes/html/bysection/chapter_50/gs_50-20.html

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.

Resource:

ncga.state.nc.us/gascripts/statutes/StatutesTOC.pl?Chapter=0050

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

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.

Resource:

ncleg.net/EnactedLegislation/Statutes/HTML/ByArticle/Chapter_50/Article_4.html

What is a Collaborative Divorce?

Today we will explore the North Carolina approach to collaborative divorce. Established in 2003 via amendment to the North Carolina General Statutes, this legal process leverages alternative dispute resolution to help spouses complete the divorce process as quickly and efficiently as possible.

How Does North Carolina Define Collaborative Divorce?

In Chapter 50, Article 4 of the North Carolina General Statutes, we can find the state-specific definition for collaborative divorce, which is referred to legally as collaborative law.

Under Article 4, collaborative law is a legal procedure that allows a husband and wife to resolve divorce and other marital disputes without involving the courts. Instead of going through lengthy court proceedings, the spouses work together to find a mutually acceptable solution to their problems.

Throughout this process, the spouses will have to account for the standard issues in any divorce. They will have to agree upon the proper division of their property, distributing ownership as they see fit. If the spouses have children together, they will work together to determine the custody arrangements. In certain cases, they will also agree upon the presence and amount of child support, alimony and other support payments.

What are the Requirements for Collaborative Divorce?

As outlined in Article 4, the husband and wife must agree in writing as to the parameters of their collaborative divorce. To be effective, the husband, wife and their lawyers must all sign the writing. The written agreement must outline all relevant understandings concerning the collaborative divorce, such as property division, child custody and support payments.

There is an additional detail to account for with collaborative divorce agreements. If the spouses are unable to reach an agreement through the collaborative divorce process, the attorneys must withdraw from the case. Those same attorneys are not allowed to represent the spouses in future divorce proceedings.

Are Collaborative Divorce Proceedings Confidential?

Article 4 provides that collaborative divorce proceedings are confidential and privileged. This means that all statements, communications and work product related to the collaborative divorce would be inadmissible in future divorce proceedings. This applies to statements, communications and work product from the spouses, attorneys and third-party experts.

Do You Have Questions for a Skilled Family Law Attorney?

Whether you are dealing with collaborative divorce or other aspects of family law, it is vital to tread carefully. Fortunately, an experienced family law attorney can analyze your situation and help you work toward a positive outcome. Located in Charlotte, North Carolina, Powers Landreth PLLC is prepared to assist you with your family law case. Don’t hesitate to reach out to us today for professional assistance.

Resource:

ncleg.net/EnactedLegislation/Statutes/HTML/ByArticle/Chapter_50/Article_4.html

Is an Annulment Right for You?

If you follow pop culture at all, you will recall that a little more than ten years ago now, actress Renée Zellweger and country singer Kenny Chesney were briefly married. The marriage lasted only a matter of months. However, a divorce was not the legal action that they took to end their marriage—it was an annulment. Annulments are not as common as divorces because they are only allowed in certain circumstances, but it is worthwhile to discuss what they are in case they apply to a situation relevant to you.

Annulment Defined

While a divorce ends a marriage of two people who no longer want the marriage, an annulment essentially treats the marriage as though it never existed. In North Carolina, two people can request that a court annul their marriage if they can show that it is an invalid marriage. The technical terms that the state and the courts use are “void” and “voidable.” If a marriage falls into either of those categories, then a court can annul it.  Most of the situations below are voidable marriages, as opposed to void marriages.  The only void one is essentially that of a bigamous situation. Such a marriage is invalid from the beginning, but it is still best to request an official annulment.

Examples of Annulment-Worthy Marriages

North Carolina lists a few different situations in which the courts will grant an annulment to a married couple.

Family Members

If the marriage is an incestual one, then that marriage qualifies for an annulment, per North Carolina law. Specifically, the two parties must be closer than first cousins.

Age

If one of the parties is under the age of sixteen and there was no prior court order allowing the marriage, then it may qualify for an annulment. However, the situation is trickier if a child is involved. If the girl or woman is pregnant or has already had a child with the other party, then the courts will not annul such a marriage. The only exception is if the child unfortunately died, either at birth or afterwards.

Capability

If one of the parties is physically impotent, then that is a ground for annulment. Along a similar vein, if one of the parties was mentally incapable of entering into the marriage and understanding what it entailed, then the courts may grant an annulment.

Deception

If a man marries a woman under the impression that she is pregnant with his child and it then turns out that she actually was not, then he may have grounds for an annulment.

Seek Help

This was simply a very brief overview of situations that can lead to an annulment, as opposed to a divorce. If you think that your situation may fall into one of the categories that we mentioned, then reach out to us. We will be able to help you fully analyze your circumstances and compare them to the different fact scenarios that have gone before the courts of North Carolina to determine the best steps forward. Call the experienced family law attorneys at Powers Landreth PLLC today.

Resource:

ncleg.net/EnactedLegislation/Statutes/HTML/BySection/Chapter_51/GS_51-3.html

False Allegations Made During Divorce

Stress, pressure, and fear will make ordinary people do unordinary things–manipulative and even deceitful things. Some divorcing spouses go so far as to make up stories about their partners that damage their reputation and chances to be granted child custody, marital property, or alimony. If you are facing such accusations, you need to act now by contacting an experienced Charlotte, North Carolina divorce attorney.

False Allegations of Domestic Violence are Rare, But Do Occur During Divorce

While false domestic violence or abuse allegations are rare, they do affect spouses negatively during divorce. Specifically, a protective order (50-B) against one of the spouses could seriously impact the decision of the judge in many circumstances. According to research and reported by the Colorado Coalition Against Domestic Violence, in  63 percent to 74 percent of domestic violence cases, there is sufficient evidence that abuse occurred. In the remaining cases, there is insufficient evidence or a mistaken belief that abuse occurred. Very rarely does a person make a false allegation, which makes it all that much more difficult to prove in court.

Accusations of Drug or Alcohol Addiction, Sexual Abuse, or Child Abuse and Neglect Can Destroy a Parent’s Chances of Custody

Allegations of child sexual abuse during divorce cases only make up about six percent of cases, though at least two thirds of those cases are substantiated by evidence. Other allegations that could seriously jeopardize your ability to receive child custody, or even visitation rights, include:

• Alcohol or drug use;
• Child abuse;
• Spousal abuse;
• Animal cruelty;
• Committing crimes without getting caught; and
• Exposing the child to inappropriate activities or material.

Gambling, Criminal Allegations Affect Asset Division and Alimony

Even though North Carolina is an equitable distribution state, as per § 50-20, meaning that marital property is divided “fairly,” though not necessarily evenly, an accusation of abuse, an addiction, committing a crime that lead to a criminal record, or other offenses could mean that you are not awarded your fair share of the marital property. Because North Carolina can is a no-fault state for divorce, meaning that the court does not “care” in many instances who caused the divorce and will go ahead with equitable distribution of assets, there are some scenarios where allegations could disrupt this. For example, if one spouse spent a lot of money gambling, on another sexual partner, or somehow deprived the family of income in some other unfaithful, deceitful, or dishonest manner, such as committing a crime, the court may side with the other spouse that cast doubt on the other. The court may not divide the assets or allocate alimony in the same manner as it would had no false allegations been made.

Contact Powers Landreth PLLC Today for Experienced Charlotte Divorce Legal Counsel

The Charlotte attorneys at Powers Landreth PLLC will help you clear your name from any false accusations and ensure that you are given a fair chance at child custody, visitation, spousal support, and asset division. Contact us today for assistance; our attorneys are happy to answer any questions you may have.

Resources:

ccadv.org/wp-content/uploads/2013/11/CCADV-CCASA-Fact-Sheet-on-Myth-of-False-Allegations_updated-2.21.14.pdf

ncleg.net/EnactedLegislation/Statutes/HTML/BySection/Chapter_50/GS_50-20.html

North Carolina Collaborative Divorce

When most people think of divorce, a complicated, stressful, and costly image comes to mind. While many divorces do end up going down that type of road, especially when the divorce is contested and goes to court, there is an easier option available for couples whose relationship is still strong enough to discuss options face to face in a controlled, neutral environment. This option is called collaborative divorce, and it may be the right choice for you.

What is Collaborative Divorce?

To settle legal disputes, there are generally three accepted methods. The most recognizable option for many people is going to court (litigation) where a judge will make the decision for you after hearing the arguments of both sides. However, an article in Forbes estimates that 95 percent of divorces are settled outside of court. So how are people going about this? Arbitration, which is somewhat similar to litigation, is another option, which involves both parties entering an agreement to let an arbitrator settle the dispute for them. Both parties present their arguments to the arbitrator and the arbitrator will either make a concrete decision or the decision will be allowed to be appealed. Collaborative divorce is similar to arbitration in that it takes place outside of the courtroom, but neither party is forced into making a decision right then and there, and no third party will make the decision for them either. During a collaborative divorce, both parties come to a single room, or separate rooms, and present their sides to the collaborative divorce attorney. The collaborative divorce attorney takes no sides and has nothing to gain or lose by pressuring either party into a decision.

Why Should I Consider Collaborative Divorce?

There are many good reasons for going with a collaborative divorce over litigation. However, it should be kept in mind that in order for collaborative divorce to work, the communicative relationship between both parties must still be somewhat intact and the wishes that both parties have entering the process should already meet somewhere in the middle.

• Cost: The average collaborative divorce cost $19,723 which is less expensive than a traditional litigated divorce, which comes in at an average of $77,746.
• You control the outcome: The collaborative divorce attorney will help both parties come to an understanding and reach a middle ground in terms of asset and property division, child custody, alimony, and other issues. If a decision is made, legal contracts can be signed there or at a later date to enforce the decisions made equally by both parties. You are in control and can agree to or deny any offers presented by the other side.

Contact an Attorney Today

Whether you decide to go with litigation, arbitration, or collaborative divorce, you will need an experienced attorney at your side throughout. Call the Charlotte law office of Powers Landreth PLLC today.

Resources:

forbes.com/sites/jefflanders/2014/05/22/divorcing-women-is-it-best-to-litigate-or-settle/#3097c9e4618c

nbcnews.com/id/22315262/print/1/displaymode/1098/