Divorce Differently |
Reach out to our firm if you need mediation services (Lindsey is a certified mediator in North and South Carolina) or if you need representation during a mediation session. What is mediation?
Mediation is an alternate dispute resolution process in which a third-party neutral mediator helps the parties brainstorm solutions to their disputes, facilitates settlement discussions and negotiations between parties, and assists the parties in resolving their disputes fully in the mediation setting. Is a mediator a decisionmaker? No, the mediator cannot make decisions for the parties or force a settlement on the parties. It is up to the parties to voluntarily agree to any resolution that they reach in mediation. A mediator’s job is to remain impartial and neutral throughout the mediation process. Is mediation confidential? Mediation is a confidential process and settlement offers or negotiations discussed during mediation cannot be used or discussed in court after the mediation session. What can you expect in mediation? Typically, mediation starts in a “joint session” where both parties and their lawyers (if they are represented) listen to the mediator explain the ground rules for mediation. Then, each party and their respective lawyer go to their own separate rooms. The mediator shuttles back and forth between each party’s room, carrying each party’s communication to the other party in neutral, non-adversarial language, helping each party understand the other’s position and perspective, making suggestions for potential resolutions, and encouraging the parties to settle. How long does mediation last? Typically, one full day of mediation (7-8 hours) is required to settle a family law case that involves the division of marital assets/debts, child custody, child support, and potentially alimony. Sometimes, half a day of mediation may only be necessary if everyone comes prepared to compromise and extend settlement offers. If more than one day is needed, follow-up mediation session(s) can be scheduled. How do you prepare for mediation?
Who pays for mediation? How much does it cost? The parties pay the mediator’s fees, which is normally an hourly rate (although can sometimes be a flat fee, depending on the mediator’s fee structure). Typical hourly rates for mediators are between $250-$450 per hour. You and your spouse equally divide the mediator’s fees at the end of your session. Payment is due to the mediator at the end of your session. Please reach out to our office if you need legal representation during mediation or if you need a mediator in North or South Carolina. Lindsey is a certified mediator in both states. Click the button below to schedule a consultation. Stay tuned for next week's blog post where we will provide tips for how to have a successful mediation. When you and your spouse separate, you may be court-ordered to pay alimony, or you may agree to pay alimony because you have been the “supporting spouse” throughout your marriage and the “dependent spouse” needs financial support due to their years out of the workforce, age, or the spouse’s contribution as a stay-at-home parent during the marriage, among other factors. But are you destined to pay alimony forever? Not necessarily. Today’s blog post explores the various ways alimony in North Carolina can be terminated.
The termination of alimony depends upon the alimony terms as set forth in your separation agreement or court order, so always reference your own order or agreement first to determine when alimony can terminate for you. In a separation agreement, your contract terms provide for the duration of alimony and the circumstances under which it will terminate. Alimony may continue indefinitely unless otherwise detailed within the separation agreement. North Carolina General Statutes § 50-16.9 states that alimony terminates upon the death of either former spouse, upon the remarriage of the dependent spouse, or the cohabitation of the dependent spouse. 1. Death of either spouse. If either the dependent spouse or supporting spouse dies, alimony will terminate. A dead person cannot receive, nor can they pay spousal support! If death of a spouse is a concern due to the age or health, you may consider negotiating a larger cut of the marital assets awarded in equitable distribution rather than monthly alimony payments as support. 2. Dependent spouse remarries. Alimony automatically terminates on the date a former dependent spouse remarries. If a former dependent spouse remarries, they are now receiving the marital rights, duties, and obligations that are awarded through marriage with their new spouse, and have no need for alimony payments from their prior spouse. 3. Cohabitation with a new partner by the dependent spouse. Cohabitation is defined as the following: “Cohabitation means the act of two adults dwelling together continuously and habitually in a private heterosexual relationship, even if this relationship is not solemnized by marriage, or a private homosexual relationship. Cohabitation is evidenced by the voluntary mutual assumption of those marital rights, duties, and obligations which are usually manifested by married people, and which include, but are not necessarily dependent on, sexual relations.” Sex alone or spending the night at a significant other’s house is not sufficient to prove cohabitation. It must be more than just occasionally spending the night with someone. Sharing utility bills, buying a house or car together, having both the dependent spouse’s and new significant other’s names on a joint lease or mortgage, or officially sharing a mailing address are all evidence of cohabitation. Cohabitation can be difficult to prove without the involvement of a private investigator or some other way to obtain evidence of the cohabitation, which is required to terminate alimony. It is often necessary to hire a private investigator to gather evidence of cohabitation, but make sure you consult with your divorce attorney first to ensure the situation is handled properly. 4. Resumption of Marital Relations (or Cohabitation with your Spouse). The resumption of marital relations or engaging in consistent sexual encounters with your ex-spouse can terminate alimony. The resumption of marital relations is defined in North Carolina General Statutes § 52-10.2, which states that resumption of marital relations is a voluntary renewal of the husband-and-wife relationship, as shown by the totality of the circumstances. Isolated incidents of sexual intercourse between the parties do not typically constitute the resumption of marital relations. 5. Alimony Expiration Date or Termination by Contract. In some cases, alimony orders dictate periodic payments over a set amount of time. Your alimony obligation would automatically terminate on the agreed-upon date. For example, in North Carolina, alimony is often agreed to or ordered by a court for approximately half the length of a marriage. 6. Voluntarily Termination of Alimony. Spouses agree that alimony payments will terminate at a certain time, like when a lower-earning spouse graduates from college, finishes a graduate degree, or obtains full-time employment. At any time after separation or divorce, the former spouses can agree that alimony payments are no longer necessary. The former spouses should execute an Amendment to their Separation Agreement or a Consent Order to Terminate Alimony submitted to the Court to officially terminate alimony. If you have questions about terminating your alimony, please schedule a consultation by clicking the button below. The South Carolina Child Support Guidelines were updated for the first time in ten years this year. The updated guidelines officially became effective on January 1, 2024. The update was necessary for South Carolina to align with federal requirements, the Tax Code, and increased cost of living. In today’s blog post, we will provide an overview of the updates implemented.
Parents’ Combined Income Maximum Increased. The child support guidelines dictate basic support schedules based on the parents’ combined incomes. The updated basic support schedule goes up to a combined parental income amount of $40,000 per month (or $480,000 per year) before the parents’ combined income is considered “off” the child support guidelines. The 2014 guidelines basic support schedule went up to $30,000 of combined income per month (or $360,000 per year) for parents. For child support purposes, gross income is always considered not net income. Self-Support Reserve Increased. The guidelines allow for a “self-support reserve” which permits a low-income parent with a legal duty to pay support to retain a minimum amount of income before being assessed a full percentage of their child support obligation. The updated guidelines increased the self-support reserve from $748 per month to $1,010.50 per month. The number of individuals whose incomes will fall into the self-support reserve will increase as a result of this change. Income Verification: Can Use Oral Testimony Under Oath. All parents’ incomes must be verified in order for a South Carolina judge to determine the child support obligation. In most instances, judges rely upon a Financial Declaration, which is a form each parent must complete with their income and expenses information and sign under oath prior to the child support hearing. Under the updated guidelines, a court can rely on oral testimony under oath for income verification when a Financial Declaration is not available or the amounts in the Financial Declaration are disputed. More Clarity on Imputing Income to an Under- or Unemployed Parent. When a parent owing child support is underemployed or unemployed, a court can impute income to that parent. The updated guidelines provide further guidance on what factors a court considers when imputing income to a parent. The guidelines state that the court should take into consideration: “…the specific circumstances of the parent to the extent known, including such factors as the parent’s assets, residence, employment and earnings history, job skills, educational attainment, literacy, age, health, criminal record and other employment barriers, and record of seeking work, as well as the local job market, the availability of employers willing to hire the parent, prevailing earning level in the community, and other relevant factors in the case.” Incarceration is not Willful or Voluntary Under- or Unemployment. The updated guidelines specify that “A determination of willful or voluntary unemployment or underemployment shall not be made when an individual’s incarceration prevents employment.” This means that when a parent is in jail or prison, they cannot be found to be willfully unemployed and imputed income. Guidelines are now Inclusive of Extraordinary Medical Expenses. The updated guidelines now include extraordinary medical expenses in the calculation of monthly child support. The updated guidelines specifically provide examples of routine professional counseling and allergy treatments as expenses that should now be included in the calculation of monthly child support. In past guidelines, professional counseling, allergy treatments, orthodontia care, or other routine medical expenses were paid by one parent and the non-paying parent reimbursed the paying parent for their portion of the uninsured medical expense. Under the new guidelines, if an uninsured medical expense is “routine,” it should be included in the monthly child support obligation as an extraordinary medical expense. Childcare Costs Must be Reasonable. The updated guidelines require that daycare and childcare costs must be reasonable, not to exceed the level required to provide high quality care for children from a licensed provider absent “absent exceptional circumstances.” Exceptional circumstances are not defined in the guidelines. Worksheet C Must be Used in Shared Custody Cases. The previous guidelines stated that the use of Child Support Worksheet C was “advisory, not compulsory.” Worksheet C is the worksheet used when parents share physical custody of children (for example, in a week on / week off child custody schedule). The new guidelines state that child support cases with shared physical custody shall be calculated using Worksheet C. If you owe or receive child support in South Carolina and have questions about your child support payment, please reach out to our office. Lindsey is licensed in South Carolina and is able to provide the legal guidance you need. As family law attorneys, we are often asked if there is a certain age when a child is permitted to be home alone. For families going through separation and divorce, this can especially be a concern because as a single parent, it is harder to have “back-up” childcare without a spouse at home. Your child may end up solo at home unexpectedly. Divorced parents may differ on their comfort levels or opinions of at what age it is appropriate for a child to be left at home alone. If your co-parent believes a child is not ready to be left at home alone and you begin to leave that child home alone, it may cause issues in your custody case or even lead your co-parent to request a modification of custody. If possible, it is always best to get on the same page with your co-parent about whether your child is ready to be left home alone.
Before kids of any age stay home alone, be sure to discuss the safety ground rules at your house. For instance, be clear on whether the child is permitted to cook or microwave food while you’re gone, if they are permitted to open the door to friends and neighbors or should not open the door to anyone (even if they know them!), and if they are allowed to use devices or screens while you’re gone. Before your child ever stays home alone, ensure your child has a reliable way to contact you and knows what do to if there is an emergency. Once you believe your child is ready to stay home alone, you might want to have your child practice staying home alone for increasing time increments of 15 or 30 minutes and have your child call and check in with you to make sure everything is going well. With modern video calling technology, a parent or trusted adult is never too far away. Before you allow your child to stay home alone, it is important to consider your child’s age, individual maturity level, personal responsibility and trustworthiness, proximity to helpful adult neighbors, among other factors. Some 11-year-olds may be responsible enough to be home after school for an hour until you get home from work and some 13-year-olds may not be. Whether a child should stay home unattended is a parenting decision based on your child’s individual personality, traits, and preparedness. There is no law in North or South Carolina that specifies the age when a child may be left unattended at home. In North Carolina, there is a fire code statute (N.C.G.S. § 14-318) which makes it a criminal offense to leave a child under age 8 locked or confined in a dwelling unattended by an adult. Per this statute, it would not be permissible to leave a child under the age of 8 at home unattended in North Carolina, because most parents would absolutely lock the doors of the house to keep their child safe. In South Carolina, it is unlawful for a parent to place a child at unreasonable risk of harm affecting the child’s life, physical or mental health, or safety (S.C. Code §63-5-70) and a parent could face neglect charges if found to have placed a child at unreasonable risk of harm. Some might interpret leaving a young child at home alone as “unreasonable risk of harm,” which would affect the safety of the child. If you are facing custody issues with your co-parent over decision making like whether or not your child is allowed to be at home alone and aren’t sure how to resolve them, please reach out to our office for a consultation. What if you Decide to Get Back Together? Reconciliation During the Separation and Divorce Process4/11/2024
At any point in the divorce process, you may decide to reconcile with your spouse. No matter how far gone the divorce process seems, you are in control of it and can always resume your relationship if you and your spouse agree to do so. While you can hit pause on the divorce process at any point, there may be some repercussions legally and financially once the process has commenced. Today’s blog post discusses the potential implications of getting back together with your spouse during the separation and divorce process.
Reconciliation or “resumption of marital relations” is the legal terminology used to refer to spouses resuming their marital relationship. Reconciling in the legal sense means that you move back in with your spouse, resume your sexual relationship, share finances and household (and parenting) responsibilities, and resume holding yourself out in society to be married. You should discuss the potential implications of reconciliating with your spouse with your family law attorney. 1. Reconciliation can affect, void, or modify a previously executed Separation Agreement. Depending upon the terms of your separation agreement, reconciling with your spouse can change, void, or modify your separation agreement contract. Your separation agreement should have a paragraph detailing what will happen to the terms of your separation agreement if you and your spouse get back together. If you are unclear about the effect of reconciliation on your separation agreement terms, reach out to your family law attorney. 2. Reconciliation restarts the clock for the 1-year separation period. For no-fault divorce in both North and South Carolina, you must be physically separated for one year, living under separate roofs, in order to file for divorce. If you reconcile and restart your marriage with your spouse, but then separate again, you will have to be separated for another full year before you would be eligible to file for divorce. 3. Reconciliation changes the valuation date of marital assets and debts for equitable distribution or apportionment. In North Carolina, when you separate, your marital assets and debts are valued from the date of separation for equitable distribution purposes. In South Carolina, your marital assets and debts are valued from the date of the filing of your divorce lawsuit for equitable apportionment purposes. If you reconcile with your spouse, but subsequently separate again, your marital assets and debts will be valued from the new date of separation (in North Carolina). If you reconcile with your spouse and dismiss your divorce lawsuit in South Carolina, then restart the proceedings at a later date, your marital assets and debts will be valued from the new date of filing of the renewed divorce proceeding. 4. Reconciliation typically excuses past adultery. If you and your supporting spouse separated over your spouse’s affair, your supporting spouse committed adultery (and you can prove it) and has the ability to pay alimony, then as a dependent spouse, you will be mandatorily awarded alimony. What happens if you get back together with your spouse after his or her affair? If you reconcile with your spouse, the adultery is typically seen by the court to have been forgiven by you. The legal term for this forgiveness is “condonation.” 5. Reconciliation impacts support orders or agreements. Parents have a legal obligation to financially support their child’s needs during separation and after divorce. If the parents resume sharing household and financial responsibilities for their child’s needs, then any child support obligation that a parent owes to the other parent will need to be modified. The parents can consent to a modification or dismiss their child support claim. Similarly, if an alimony obligation exists for either spouse, but the spouses resume living together and sharing financial responsibilities, the spouse who owes alimony will want to be sure that the legal obligation is terminated by consent order or formal agreement. Considering a resumption of your marriage and want to protect yourself financially and legally? Consider entering into a postnuptial agreement. This is a private, binding contract entered into during a marriage that can address matters related to property and debt distribution and spousal support in the event of a later separation or divorce. When you are ready to move forward with the divorce process, reach out to our office to schedule a consultation. As our blog post last week discussed, the most important part of selecting a therapist or counselor for your child is that your child trusts the therapist, meshes well with the therapist, and wants to continue to go to therapy. If the first therapist chosen isn't the right fit for your child, it is always okay to search for a therapist who can be a better fit. Below are a few considerations you should make when you are selecting a therapist for your child.
Considerations for a Child's Therapist. Knowledge and Experience Working with Children: You should connect your child to a therapist who specializes in treating children and has significant experience or training in doing so. Ask potential therapists about their training, certifications, and the percentage of their work that is devoted to child clients. Type of Therapy Provided: Is your child preschool age? Your child might need play therapy and you should look at therapists who provide that type of therapy. Has your child gone through a traumatic event(s)? That child may need a trauma-focused therapist or EMDR (Eye Movement Desensitization and Reprocessing) to assist in processing the traumatic memories and associated symptoms. Are you concerned your child may also need medication to cope with their depression or anxiety symptoms? Your child may need a Psychiatrist or Nurse Practitioner who can prescribe medication, in addition to a talk therapist. Type of Clinician and Credentials: There are many different types of clinicians who are trained to provide therapy including Licensed Counselors (LPCs) or Licensed Clinical Mental Health Counselors (LCMHCs), Licensed Clinical Social Workers (LCSWs), Licensed Marriage and Family Therapists (LMFTs), Clinical Psychologists (PhDs), and more. All of these clinicians are highly trained to provide therapy but vary in the types of therapy modalities they utilize in their sessions and the way they approach therapy with a child. Cost: Many therapists and counselors do not accept insurance. They charge each client a flat rate cost out-of-pocket (or have a sliding scale fee for lower-income clients). Many therapists will provide a “Super Bill” to self-file with your insurance as an out-of-network provider. If you see many out-of-network providers, this can provide some relief from therapy costs once you hit your out-of-network maximum. If you need to make sure that a provider is in-network for insurance purposes, check the therapist’s website to see if they take your insurance. Psychology Today also lists the types of insurance each therapist takes, but the website may not be up to date, so it is important to always check with the therapist’s office directly. If you need child therapist referrals as your child navigates the separation and divorce transition, please feel free to reach out to our office. Our practice regularly intersects with local child therapists and we can refer you to child therapists that can meet your child’s needs. Should my child be in therapy or counseling during a separation / divorce?
If your child is struggling emotionally at home or in school, their behavior or mood is affecting their schoolwork or friendships, and the behavior or issues are continuing for more than a few days, your child should likely be in therapy or counseling. If your child is experiencing a major change in sleep habits or appetite, this can also be a sign that they are struggling and need to be connected to a counselor. Children who are actively struggling should be connected with a therapist sooner rather than later during the separation and divorce transition. Therapy or counseling provides a positive, safe space for the child to express their feelings around the divorce, the changes and transitions associated with the divorce, and helps the child learn to advocate for himself or herself throughout the divorce and beyond. A therapist or counselor is a trusted adult outside of the family with whom they can discuss their concerns and feelings. Having a “third place” (a therapist’s office) aside from home and school can be incredibly helpful for children adjusting to a new normal post-separation. Counseling allows a child to understand that the divorce is not their fault and can also strengthen a child’s relationship with both of their parents. Even if you’re not entirely sure your child needs a therapist, it cannot hurt to connect them to one. How do I find a therapist or counselor for my child? The best place to start is to ask your pediatrician or your child’s school guidance counselor for referrals to local therapists or counselors who specialize in working with children. If you do not find a child therapist with whom you think your child will connect from those referrals, ask trusted friends and other parents of children the same age if they have any counselor or therapist referrals. If you’d rather search for a therapist on your own without outside input, the Psychology Today website has a great “Find a Therapist” search function where you can narrow your search by geography, issues, gender, types of therapy provided, age, cost, and more. How do I select the right therapist or counselor for my child? What is most important in selecting the right therapist or counselor for a child is that a child’s personality meshes well with the chosen clinician. It is essential that the child wants to continue to see the therapist, so the therapy process is productive and effective for the child. If your child does not hit it off with the chosen therapist in the first few sessions, it is always okay to search for a new therapist that is a better fit for your child. Stay tuned for next week's blog post, which will detail considerations for choosing your child's therapist. If you need child therapist referrals as your child navigates the separation and divorce transition, please feel free to reach out to our office. Our practice regularly intersects with local child therapists and we can refer you to child therapists that can meet your child's needs. Are you forfeiting any property rights if you leave the marital home?
By leaving the marital home, you are not giving up your right to claim an interest in the home, or the personal property within the home. You do not need to be concerned that by leaving the marital home, you are abandoning your property or forfeiting your interest in that property. It should be noted that once you have left the marital home, you will not have any control over what occurs inside the home, including the maintenance and care of the home, furniture, or your personal belongings. We typically advise clients to take all irreplaceable items with them when they separate, including passport, social security card, birth certificate, family heirlooms, jewelry, and photos, etc. While you do not lose your right to these personal items, your spouse may or may not make it difficult to get them back once you’ve left. Once you have voluntarily left the marital home, your spouse remaining in the home will have an expectation of privacy, meaning you will not be able to come and go in the marital home as you please. After you voluntarily leave the marital home in North Carolina, it is illegal to enter back into the home without your spouse’s permission. Entering the home without permission is called “domestic criminal trespass,” and is a Class 1 misdemeanor in North Carolina (see N.C.G.S. § 14-134.3). You will still have a legal right to the home, but it will be your spouse’s temporary residence, and you cannot enter at will. Should I change the locks to force my spouse out of the marital home? In South Carolina, if you do not have a court order directing your spouse to vacate the home and your spouse is not leaving voluntarily, your spouse can enter back into the home even if you change the locks. In North Carolina, it is illegal to lock a spouse out of the marital home. The spouse still has a right to be in the marital home if they do not choose to leave voluntarily. When can I change the locks on the marital home? In North Carolina, you can change the locks on the marital home if your spouse voluntarily leaves the marital residence without the intention of returning, or if a court issues a Domestic Violence Protective Order granting you sole access to the marital home. In South Carolina, you can change the locks on the marital home if there is a court order granting you residency in the marital home. This can be a Decree of Separate Support and Maintenance, or a Divorce Decree. If you’re considering leaving the marital home or want your spouse to leave the marital home and need legal advice, please reach out to schedule a consultation with one of our lawyers. People age 50+ are usually focused on finalizing their financial security for retirement and divorce can greatly disrupt that security. Divorce has significant financial implications for younger couples, but can have devastating financial consequences for older couples. Be sure to discuss the financial implications of a property settlement or alimony agreement with your family law attorney, to ensure your future financial wellbeing.
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AuthorLindsey Dasher is the Managing Partner at Dasher Law PLLC Archives
May 2024
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