Divorce Differently |
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Be sure to go back and review our first two posts in this three-part series on stay-at-home parents and what to expect upon separation and divorce financially. Today's post will address child custody and child support.
Child Custody Being a stay-at-home parent and/or the primary parent during the marriage does not necessarily mean that you will continue to be the primary parent for child custody upon separation. Your co-parent and spouse will inevitably step up and do more active parenting than they did during the marriage because they will no longer have the support of a stay-at-home parent. It can be difficult to let go of the primary parent role as a former stay-at-home parent, but it can only benefit your children to have two engaged, active parents contributing to their lives. The standard for determining child custody in court is what is in the best interests of the children. If you are resolving child custody outside of court, that best interest determination will remain the most important consideration in reaching a child custody agreement. Often, equally sharing physical custody of the children after separation is a great option for kids and families (i.e., alternating full weeks with each parent). However, if one parent has a more demanding job that doesn’t allow for a traditional week on/week off shared parenting arrangement, there are certainly alternatives. Perhaps the parent with the demanding job can accommodate a longer weekend of parenting time from Thursday to Sunday or a mid-week overnight for the kids. Child custody arrangements and schedules are not one-size-fits-all, and you and your spouse can discuss and agree on what will be the best custody schedule for the children and your family long-term. Our firm can educate you on options for child custody schedules if you aren’t sure what would be best for your family. Child Support If upon separation, you are still a stay-at-home parent with primary physical custody of the children and/or you are earning significantly less income than your spouse, your spouse will be required to pay child support to you. When you have children, both parents have a duty to support their children financially whether those children live with you 100% of the time or 0% of the time. Both parents have a responsibility to put a roof over their heads, clothes on their backs, food in their bellies (even if they won’t eat the broccoli you make!), pay for their health insurance and medical care, provide or pay for childcare, and provide for any other necessities. To learn more about the basics of child support in North Carolina or South Carolina, please refer to our past blog post by clicking this link. Please reach out to our firm to schedule a consultation if you are a stay-at-home parent and need guidance on your child custody schedule and child support obligation. We are very familiar with supporting stay-at-home parents through this transition and can help you, too. Dividing Marital Assets (Equitable Distribution or Apportionment)
Today's post is part two in a three-part series addressing what a stay-at-home parent can expect legally and financially upon separation and divorce. Head back to review our first post before you continue on! Just because the supporting spouse “earned” the income or acquired the marital assets with his or her income does not mean that a stay-at-home parent forfeited any right to half of the value of the acquired assets. Stay-at-home parents are entitled to an equitable distribution of the net marital estate upon divorce. Equitable distribution (or equitable apportionment in South Carolina) means that all marital debts and marital assets will be equally divided (50%/50%) between the spouses. To learn more about equitable distribution in North Carolina and equitable apportionment in South Carolina, click this link to take you directly to our firm’s blog post devoted to explaining the basics. Stay-at-home parents do not lose their rights to half of their spouse’s retirement account(s), bank accounts, the marital home, or marital cars when they choose to stay home and support their supporting spouse by caring for the children, house, and other household management tasks. As long as the assets were acquired during the marriage, the assets are considered “marital” and the stay-at-home parent would generally be entitled to 50% of the value of the asset. The same rule applies for any debts or liabilities incurred during the marriage, generally speaking. Please reach out to our firm to schedule a consultation if you are a stay-at-home parent and need guidance on dividing your marital estate. We are very familiar with supporting stay-at-home parents through this transition and can help you, too. Today’s post is the first in a three-part series explaining what a stay-at-home parent can expect legally and financially upon separation and divorce. During a marriage, a couple may choose for one parent to stay at home with their children rather than pay the exorbitant cost of childcare or have their children cared for by a caretaker outside of the family. But when a marriage turns sour, unhappy, or unfulfilling, a stay-at-home parent may feel trapped in the marriage because they feel financially dependent on the working parent. If you are a stay-at-home parent feeling stuck in your unhappy marriage, do not fear! You don’t have to stay in an unhappy marriage and there are several paths to lead you towards a happier future. If you are a stay-at-home parent thinking of separating from your spouse, please reach out to our firm to schedule a consultation so we can help you understand to what you are financially entitled if you choose to separate.
Re-Entering the Workforce Depending on your age, health condition, work experience, and education among other factors, when you and your spouse separate there may be an expectation that you will re-enter the workforce in some form or fashion, to supplement your own income and provide for yourself and your children. The income that your working spouse earned while you shared a household may be stretched very thin when there are two households to financially support upon separation. The best way to ensure financial security for you and your children is to find a way to supplement or increase your income. As a stay-at-home parent, you will likely have some options and entitlement to financial support from your spouse after separation, as outlined below, but you will likely not be able to solely rely on your supporting spouse financially for the rest of your life and will need to reenter the workforce at some point. Alimony or Post-Separation Support As a stay-at-home parent, for alimony purposes you are a “dependent” spouse while your spouse is a “supporting” spouse. Alimony is financial support that a supporting spouse pays to a dependent spouse during separation or following divorce. Alimony is not automatically awarded in North or South Carolina, and you must need alimony to maintain the standard of living to which you became accustomed during the course of your marriage in order for you to receive alimony. Additionally, the supporting spouse must have the ability to pay alimony to you. There is no formula to determine alimony amount and duration in North Carolina and there are sixteen factors to weigh, including: the length of the marriage, the reasonable needs of the spouses, the incomes and earning capacities of the spouses, the reasonable expenses of the spouses, any marital misconduct by either spouse, the ages and health of the spouses, one spouse’s contributions to the education, training, or increased earning power of the other spouse, the extent to which the earning power, expenses, or financial obligations of a spouse will be affected by serving as the custodian of a minor child, the relative education of the spouses and the time necessary to acquire sufficient education or training to enable the dependent spouse to find employment to meet his or her reasonable economic needs, the contribution of a spouse as a “homemaker,” and several more. There is no formula for the calculation of alimony amount or duration in South Carolina, either. There are four types of alimony in South Carolina: permanent periodic (typical monthly payments), rehabilitative, reimbursement, or lump sum. As a stay-at-home parent, you may be entitled to permanent periodic alimony, rehabilitative alimony, or lump sum alimony, depending upon your situation, what you and your spouse agree to outside of court, or what the court orders. If you were a stay-at-home parent to young children prior to separation, take note of rehabilitative alimony. This type of alimony is meant to “rehabilitate” a spouse in acquiring higher income earning power, training, or education in order for that spouse to become financially self-sufficient. Rehabilitative alimony might be paid to a stay-at-home parent for a limited time until young children enter school, or until that parent can complete additional education to reenter the workforce. Alimony can be awarded within a separation agreement by you and your spouse agreeing that your spouse will pay you alimony, or it can be ordered by a court. At Dasher Law, we assist clients in obtaining their best outcomes outside of court and can assist you in obtaining alimony, or understanding if you are entitled to alimony, if you were a stay-at-home parent prior to separation. Please reach out to our firm to schedule a consultation if you are a stay-at-home parent and need guidance. We are very familiar with supporting stay-at-home parents through this transition and can help you, too. Come back next week to learn about the division of marital assets and how that might occur as a stay-at-home parent. This is the second of a two-part series about parenting time refusal. Please read the first part of the series to understand the reasoning behind why many children are resistant to a new custody arrangement and then return here to find out what you can do about parenting time refusal within the confines of the law and with respect to your child and your co-parent.
Do I have to require my child to see his or her parent? Many parents ask if they must “force” their child to visit with the other parent. If you are using the word “force,” I would suggest that you reframe your thought-process around your child’s time with the other parent. “Force” suggests that you don’t want to require the child to go with the other parent or that you are supportive of the child’s refusal to see the other parent. As a primary parent, you need to support your child’s relationship with your co-parent. Your child benefits from both parents’ involvement and engagement in his or her life. If there is a formal custody order (either a Consent Order entered into by the parties and then signed by a judge or a custody order entered following a custody hearing or trial), then yes, you need to require your child to see the other parent and make all attempts to follow the custody order. Refusing to do so is a violation of a court order and you could be held in contempt of court for failing to follow it. If there are no concerns for your child’s safety while they are with the other parent, you should encourage your child to enjoy their time with the other parent, bringing up positive attributes of the other parent, and casting your child’s time with the other parent in a positive light. Think about parenting time like you do other mandatory events. Your child must go to school, and they also must go to see the other parent. Does your child always want to go to school? No, but you require them to attend. Similarly, your child might not always want to go to the other parent, but they need to and must go. Should I require my child to spend time with me? As a parent, you must weigh the options and decide if requiring your child to come to spend time with you is worth the potential fallout. If the primary parent is a co-parenting advocate and your child is on the younger side, then generally, I would advise that you continue requiring your child to spend time with you. Your child will benefit from having a relationship with both parents and it is usually best for the child to continue having time with you. If a child is a teenager, you must consider the impact of requiring parenting time on your long-term relationship with your child. Forcing parenting time upon an older teenager may not be worth the negative impact it will have on your long-term relationship. Consider engaging in family therapy sessions with your resistant child. Listen to the therapist on how to engage and support your child through this rough patch. If you play the long game with your kids, keep showing up, supporting, and loving them through this minor hiccup in your parent-child relationship, usually they will come around. How old does a child have to be to refuse to see a parent? There is no set age in North Carolina or South Carolina when a child is permitted to decide whether or not they spend time with either parent. What do I do if visitation is truly harming my child? If there is concern for abuse, you should contact law enforcement or the Department of Social Services (“DSS”) and make a report. This should only be done if there is a true, major concern of abuse. Including law enforcement or DSS in your family members' lives is not something to do lightly and definitely not something to be used as a manipulative tool to stop parenting time with the other parent. If there is any concern of abuse, immediately connect your child with a qualified therapist. Separation and divorce are tough on the adults involved, so be kind and understanding that it is also difficult for your children. Your children are less equipped with the ability to regulate their emotions and process them. They may blame one parent or struggle with the transition between households. If you need help navigating this process, reach out to our office and connect you or your child with a qualified therapist. If you are unsure how to navigate this challenge in your parenting time schedule, please reach out to us to schedule a consultation. Your child doesn’t want to go to the other parent’s house, and you don’t know what to do. Thoughts run through your head about what to do, but before you start to spiral, let me walk you through some reasons why a child might not want to go with their other parent. The majority of the reasons why a child doesn’t want to transition to the other parent are normal, innocuous, and expected. Keep your emotions in check and try not to jump to negative conclusions about the other parent.
Resistance to Change Kids thrive on familiar routines and going to a new home is a new routine that requires adjustment. It may not be that your child doesn’t want to see and spend time with their other parent, but that the child is struggling with the new routine that is out of his or her norm. Give your child, yourself, and your co-parent grace through this transition and give everyone time to adjust to the new normal. Separation Anxiety Kids naturally want to show you that they love you and are bonded with you, and they do this by avoiding separation from you. Have you ever had to drop your child off at daycare or school and they cry and pitch a fit? Later, you hear from their teacher that they recovered within a minute or two of you walking out the door. This may be what is happening during parenting time transitions, as well. You only get to see the hard part of separation and don’t get the benefit of seeing them recover quickly and move on to enjoying parenting time with the other parent. Child’s Preference Is the other parent stricter than you? Does the other parent limit screen time to a greater extent? Maybe your co-parent’s parenting style differs from yours? Every parent must make choices about how to make it through each day with a child, where to use screen time as a tool for your own productivity, which battles you will pick, and which boundaries you will hold. Perhaps you are the primary parent who needs screens to entertain your child while you make dinner, prepare for the next day, or finish up a work call, but your co-parent has limited time with the kids so they don’t allow screens during their parenting time. Your child may just want to stay with you because you give them more freedom! Parent’s Anxiety Are you anxious about your child going to the other parent’s house? Do you constantly worry about your child when they are with your co-parent? Do you ask your child a barrage of questions when they return from their other parent’s house? Children are incredibly intuitive, and your child may sense and absorb your anxiety about the transition. Try to avoid allowing your child to see your anxiety. Keep your questions light after they return from the other parent’s house. Do not grill your child about every moment of their time with your co-parent. Keep your own worries to yourself as much as possible. If you need help managing your own anxiety, connect with a qualified therapist to help you. The transitions will become easier for you as the custody schedule becomes second-nature. Parental Alienation In your custody agreement or order, there are likely rules that each parent must follow regarding treatment of their child’s relationship with the other parent. Most custody agreements require that neither parent speak negatively about the other parent in front of the child, nor let the child remain in the presence of others doing so; that neither parent estrange the child from the other parent or impair the natural love and affection between the other parent and a child; and that the parents must encourage and foster a sincere respect and affection for both parents. “Parental alienation” occurs a when a parent consistently and systematically turns a child away from their other parent and sours the relationship between the child and their other parent. This can happen when a parent speaks negatively about the other parent in front of the child, encourages a child to be angry at the other parent about the situation, or guilt trips a child for wanting to see their other parent. If your child is acting resistant to going to the other parent’s house, you may want to examine your own actions with great care. Are you making snide comments about your co-parent in front of the child? Do you act hurt or sad when your child spends time with the other parent or expresses a desire to do so? All of these actions by a parent can cause a child to resistant spending time with their other parent and may fall within the definition of parental alienation. Connect your child with a therapist to help them cope with the new norm and empower them during this difficult transition. If you need recommendations for great child therapists, please reach out to your family law attorney for referrals. Our office frequently helps connect families and children with the support they need to weather this tough time. If you need direction on how to handle this challenge, please reach out to our office to schedule a consultation. What is common law marriage?
Common law marriage is a marriage recognized by the state that does not require the spouses to obtain a marriage license or hold a formal marriage ceremony. A state that recognizes common law marriages usually require the spouses hold themselves out to be married in public life, cohabitate together, and agree that they desire the state to legally recognize their union. The legal bar to establish a recognized common law marriage is typically quite high. Why does common law marriage exist? Common law marriage harkens back to days before easy and quick transportation when it was more difficult to locate a minister to conduct a marriage ceremony or the physical distance to obtain a marriage license from a courthouse was too great. Common law marriages provided protection of a couple’s reputations by allowing couples to avoid “living in sin” by cohabiting prior to legal marriage and avoid having their children shunned in society by being born out of wedlock. Does my state have common law marriage? South Carolina In South Carolina, effective July 24, 2019 as a result of the South Carolina Supreme Court Case Stone v. Thompson, South Carolina no longer recognizes new common law marriages. If you were already in a common law marriage established prior to July 24, 2019, South Carolina will continue to recognize your existing common law marriage. North Carolina North Carolina does not recognize common law marriage for its residents. North Carolina requires all couples who wish to be legally married to go through the legal process of statutory marriage, which includes obtaining a marriage license, participating in a marriage ceremony, having two witnesses to the marriage, and submitting the license to the county register of deeds to receive a marriage certificate. Will my common law marriage be recognized in South Carolina/North Carolina if I move from another state? Generally, the United States Constitution’s Full Faith and Credit Clause requires states to recognize and give full faith and credit to the laws of other states. This constitutional clause applies to common law marriages being recognized from one state to another. South Carolina Yes, in South Carolina your common law marriage will be recognized if you moved from another state that recognized your common law marriage and you are now domiciled in South Carolina. North Carolina Yes, it is likely that North Carolina will recognize your common law marriage, but there are a few factors that must be met in order for your marriage to be recognized. (1) You have to have been engaged in cohabitation in a state that recognizes common law marriage; (2) the out-of-state common law marriage was recognized by the state you were cohabitating in; and (3) the court in North Carolina can establish a date that your common law marriage began. What are the requirements of common law marriage? You might have heard that people who have lived together for seven (7) years or more and hold themselves out as spouses are “common law married,” but that was not the requirement in South Carolina prior to 2019 and is just a widespread myth. In South Carolina, for your relationship to have been considered a common law marriage prior to 2019, you had to be over sixteen (16) years old, not married to someone else, not be related to your partner by blood, cohabitate, and hold yourself out to be married both publicly and privately – which is more difficult to prove than you might imagine. Common law marriage provides the same economic and legal benefits as marriage, like tax breaks and inheritance rights. Do I have to go through divorce if my marriage was common law? There is no “common law divorce,” but if your relationship was legally recognized as a common law marriage in South Carolina prior to 2019 or another state that recognizes common law marriage, you will have to obtain a legal divorce to address any property and alimony/spousal support that exist. You also must obtain a divorce in a common law marriage to avoid potential bigamy issues that might arise if you remarried without obtaining a divorce from your common law spouse. Additional proof of the validity and existence of the common law marriage may have to be presented in a divorce from a common law marriage. It can be tricky to prove that you were married by common law and entitled to property division or spousal support, as it is often one spouse’s word against the other. If you have any questions or concerns about common law marriage in North or South Carolina, please reach out to schedule a consultation. When you separate from your spouse, you may feel like shouting from the rooftops about some or all of the following: how it was your spouse’s fault that you are getting divorced, your newfound freedom from your spouse’s dead weight, your sadness and loneliness as a result of your spouse leaving, or about the difficulties of co-parenting. As attorneys who primarily represent clients with family and domestic issues, we are here to tell you: do not take to social media to air your grievances with your spouse. Utilize the tips below to monitor and manage your social media use during your separation and divorce.
Talk to your lawyer if you have questions about how to proceed with social media use now that you are in the midst of a divorce. If you haven’t hired a lawyer yet, please reach out to schedule a consultation and we would be happy to guide you through the process. When someone makes the decision to separate from their spouse, their first step is often to find an attorney. What you might not know is that there are other third-party professionals aside from attorneys that can support you and your family throughout the separation and divorce process. If you are committed to resolving your divorce amicably under a collaborative divorce agreement, you may want to consider improving the collaborative divorce process by engaging one or more of the following third-party professionals.
FINANCIAL NEUTRAL Upon separation, you might need help figuring out how to separate your marital finances. Perhaps you’ve never been responsible for the bills, never followed a budget, or your spouse has been primarily responsible for investment decisions. A Financial Neutral can step in to evaluate and assist couples in separating the family finances fairly and equitably. Typically, a Certified Divorce Financial Analyst (CDFA), Certified Public Accountant (CPA), and/or Certified Financial Planner (CFP), a Financial Neutral objectively analyzes the parties’ marital estate (assets and debts), budgets, spousal support scenarios, valuation of pensions or complex compensation plans, pre-marital/separate assets, and assists couples by addressing and brainstorming about any financial issues that arise. A Financial Neutral is usually hired by and works for both spouses. This can be a cost-effective solution for divorcing couples who are high-income earners, have complex compensation plans or retirement plans, and/or have significant separate or pre-marital assets. A Financial Neutral analyzes the marital estate once, rather than spouses paying both individual attorneys to fully analyze the marital estate, which may be seen as duplicative. A Financial Neutral’s hourly rate is usually much lower than an attorney’s hourly rate. Additionally, having a Financial Neutral provides the benefit of getting the spouses on the same page about the actual value of the marital estate and can reduce opportunities for disagreement in settlement. CHILD SPECIALIST Maybe you have minor children and you and your spouse do not agree on the best custody schedule for your children, but you are committed to collaborating to determine what is in your children’s best interests. Perhaps you and your spouse need some assistance in addressing the children’s needs as they go through this major life transition with you. In these circumstances, you can hire a Child Specialist to assist your family. Usually a licensed child psychologist or experienced therapist trained in child development and divorce, a Child Specialist ensures that the parties’ child or children have a voice in the divorce process and have a smooth transition from living in one home to two. A Child Specialist can help a child express his or her feelings in uncomfortable situations, encourage a child to advocate for themselves, and guide and educate parents regarding how to address the day-to-day needs of the children. A Child Specialist serves to educate the parents on developmentally appropriate parenting plans and parent/child relationship dynamics. A Child Specialist does not serve in an individual therapeutic role for the child when serving as a Child Specialist in a divorce due to ethical obligations. A child might be well served by a separate individual therapist who is not the Child Specialist. DIVORCE COACHES Upon separation, there are so many decisions to make during one of the most emotional times of your life. You may be feeling overwhelmed with all the decisions and unfamiliar with the divorce path. To help you navigate these emotions and understand the divorce process, you may hire a Divorce Coach. Normally a licensed mental health professional like a psychologist or counselor, a Divorce Coach can be hired by one or both parties to help process their feelings related to the divorce and figure out a plan for how to tackle the big decisions required in divorce. Divorce Coaches are experts in the divorce process itself, which is unfamiliar to a newly separated couple. A Divorce Coach helps the collaborative process proceed smoothly by allowing the spouses to communicate their needs and priorities to the Coach. The Coach ensures that the emotional issues relative to the divorce are addressed and worked through during the collaborative process, thereby preventing the spouses from cycling through past hurts or perceptions during the collaborative team meetings. A Divorce Coach can help the spouses envision their lives post-divorce, develop skills for negotiation and emotional regulation throughout the divorce process, and educate them regarding the divorce process. A Divorce Coach operates independently from an individual therapist for one spouse and some spouses might have their own individual therapists in addition to the collaborative Divorce Coach. If you have already hired an attorney, ask your attorney for suggestions and referrals to third-party professionals who can support you through the collaborative divorce process and help you, your spouse, and your children come out on the other side for the better. During a divorce, there are many outside parties who might need to get involved in order to assist with the financial dissolution of the marriage, the valuation of assets, emotional support, settlement negotiations, or decision-making surrounding the separation and divorce.
INDIVIDUAL THERAPISTS Upon separation, you may feel like you need one person in your corner, outside of family and friends and outside of the messy middle of a divorce, who will listen to you and offer feedback on coping with the flood of emotions that come alongside a divorce. You may also think your children could benefit from the same type of person in their corner. If that’s the case, it is great to seek out a qualified therapist. Therapists can be licensed clinical social workers (LCSWs), licensed professional counselors (LPCs), psychologists (PhDs or PsyDs), licensed mental health counselors (LMHCs), licensed marriage and family therapists (LMFTs), or psychiatrists (MDs or DOs). The letters behind a therapist’s name are not nearly as important as their personality and fit to your (or your child’s) personality. Ask for recommendations from friends, family, or from your attorney for therapists who are trained to support individuals through divorce. You can also utilize an online search method like Psychology Today’s “Find A Therapist” to find one in your local area. Having an individual therapist allows either the spouse or the child to have a safe place to share thoughts and feelings, be encouraged and empowered with coping skills, and process the grief of divorce. PARENTING COORDINATORS If your divorce is wrought with arguments and disagreements with your spouse about the smaller details of parenting not included in a custody order and you keep ending up back in court to resolve the disputes about the kids, you might be a family who needs a parenting coordinator. Parenting coordinators are either trained attorneys or mental health professionals approved and appointed by the court who assist parents in implementing child custody orders. Parenting coordinators are able to be appointed in North Carolina due to North Carolina statutory authority providing for their appointment. In South Carolina custody cases, there is currently no similar statutory authority for the appointment of parenting coordinators. Parenting coordinators are trained to help parents reduce conflict, reach compromises, and improve communication. If, after discussions about a parenting decision with the parenting coordinator, the parents still cannot come to a mutual agreement, a parenting coordinator will weigh each parent’s arguments and make the parenting decision. A parenting coordinator acts as a liaison between the parents, limiting parental interaction, which in turn limits parental conflict. A parenting coordinator can make decisions for children that are highly important to their lives like what schools they attend, the extracurricular activities in which they may participate, how the child will be disciplined, health care management, or how the child will be transported to and from each parent’s home. These are decisions that should not be delayed by the court system and in typical familial circumstances, parents are able to collaborate together to decide. In high-conflict divorces, however, parents typically cannot collaborate and need the services of a parenting coordinator to avoid constant litigation. If you are in a situation where your co-parent will not make parenting decisions collaboratively, you can ask the court to appoint a parenting coordinator or you and your co-parent can agree to appoint a parenting coordinator to assist you in moving forward in your child custody disagreements. REAL ESTATE APPRAISERS Oftentimes, the marital residence is the largest asset that couples have acquired during their marriage. If you want to keep the house in the property settlement, you and your spouse will need to agree on the value of the house so that the spouse not remaining in the home can receive his or her half of the value of the house. If you and your spouse do not agree on the value of the house, you may need to engage the services of a real estate appraiser to determine the fair market value. A real estate appraiser is a licensed or certified third-party professional who provides an appraisal report that details the value of the home and land and provides a fair market value number based on the report. A real estate appraiser will do an in-person inspection of the house and lot, compare it to other similar homes in the neighborhood, and consider the housing market trends to determine a fair market value for the home. When appraising a property for use in a divorce settlement, it is important to have your appraiser evaluate the value of the property at the date of separation and, if time has passed since the date of separation, the current value of the property. Passive and active increases or decreases in the property value after the date of separation are considered in the overall divorce property settlement. BUSINESS VALUATORS If you or you and your spouse own a closely held business that is not publicly held and/or easily valued, you will likely need to determine a value in order for the business to be considered in the divorce property settlement. Businesses that are incorporated during a marriage are marital property and can be divided equally upon divorce unless you and your spouse agree otherwise. A business is made up of tangible assets like bank accounts, equipment, buildings, and inventory and intangible assets like goodwill, trademarks, patents, and other intellectual property. If you and your spouse agree on the value of the business and how to divide it, you can avoid the following step. If you do not agree on the value of the business and the value of the business needs to be considered in the divorce property settlement, you may need to hire a business valuator to establish the value of the business. Business valuators can be Certified Business Appraisers, business valuation analysts, business valuation specialists, or Certified Public Accountants. Business valuators commonly use the fair market value standard, or the market approach, to determine the fair market value of the business. In a divorce settlement, the parties can use the business value to determine how you and your spouse will split the business. MEDIATOR If you and your spouse are generally cordial and want to resolve your divorce outside of court, utilizing a mediator might be a great option for you. It can be difficult to sit down and come to an agreement in a one-on-one conversation with your spouse because of the emotions that surface. A mediator can facilitate the conversation between you and your spouse, keeping it professional and focused, so you and your spouse can come to an agreement about your divorce settlement without the extra cost and headache of going to court. A mediator is a neutral third party who reviews and helps resolve the issues in a divorce settlement as equitably as possible. Depending on how many issues are outstanding upon the mediation date, mediation can last as little as a few hours, although a mediation session typically lasts for one full day (about 8 hours). A lawyer’s job is to advise his or her individual client during mediation, whereas the mediator’s job is to facilitate negotiations between the spouses and help the spouses move toward compromise. If you and your spouse are amicable, you can agree to mediation on your own, with or without attorneys participating in the process. In North Carolina, a mediator cannot draft the final agreement between the spouses, and you would have to take your list of agreed-upon terms to an attorney to draft into an agreement. In South Carolina, a mediator is permitted to draft the final agreement between the spouses, which is then offered to the court for approval in a final hearing. ARBITRATOR If you and your spouse are not able to come to an agreement on your own or with a third-party mediator’s facilitation, but you do not want to subject your personal family and financial matters to a public proceeding in the courtroom, you can choose to utilize an arbitrator. An arbitrator is a neutral third party who acts as a private judge providing a binding decision and order that the spouses must follow. You and your spouse get to choose the arbitrator, the arbitrator’s decision is binding (generally) and cannot be appealed, and you can resolve your marital issues as soon as you can get onto an arbitrator’s schedule without waiting for the court’s backlog. In North Carolina, the Family Law Arbitration Act governs the arbitration proceedings. In North Carolina, spouses can agree to arbitrate any issue that arises out of a marriage, except for the divorce itself, during or after marriage. A couple can agree to submit marital issues to arbitration within a postnuptial agreement or a separation agreement. You can also agree to submit any issue arising out of a marriage, except for child custody, child support, and the divorce itself within a prenuptial agreement prior to marriage. In South Carolina, the South Carolina Family Law Arbitration Act governs the arbitration proceedings. South Carolina allows for arbitration of all issues arising from a separation or divorce except for the divorce itself, adoptions, termination of parental rights, allegations of child abuse/neglect, allegations of spousal abuse, or criminal or civil contempt sanctions. Please reach out to our office to discuss your options for support and resolution, both emotionally and legally, and we will be happy to guide you toward the best possible scenario for your individual situation. Equitable Distribution or Apportionment Basics
During a marriage, you acquire property — whether just through the paychecks you receive from your employer or larger acquisitions like purchasing a house or car, starting a business, buying stocks, or investing money into retirement accounts. Additionally, you might acquire debts during your marriage. Both North and South Carolina laws provide for the division and distribution of the marital estate between spouses, including both property and debts. This is called “equitable distribution” in North Carolina and “equitable apportionment” in South Carolina. There is a general presumption in both states that it is fair and equitable to divide all the property and debt acquired during the marriage (the “marital property”) equally (50%/50%) between the spouses. What is Marital Property? All assets, debts, personal property, and real property obtained during the marriage are considered marital property and will typically be divided equally between the spouses. Marital property can include pensions, retirement accounts, deferred compensation plans, personal property, and real property, among other assets. In North Carolina, property acquired from the date of marriage until the date of separation is marital property. In South Carolina, property acquired from the date of marriage until the date of filing of marital litigation is marital property. What is Separate Property? Any assets, debts, and property obtained prior to marriage or acquired by a spouse by bequest (gift through a will), devise (inherited through a will), descent (if someone dies without a will and you inherit property from them), or gift during the course of the marriage. Separate, or non-marital, property is not subject to equitable distribution or apportionment. Separate property will remain the property of the spouse who brought that property or debt into the marriage or who acquired it during the marriage through one of the methods mentioned hereinabove. What is Divisible Property? Divisible property is any increase or decrease in the value of the marital property that occurs between the date of separation and the date of division of the property. For example, any rise or fall in the value of the former marital residence due to external factors like the real estate market that occurs between the date of separation and the date of division of the property is divisible and will be divided between the parties. Who is responsible for debts accrued during the marriage? All debts and liabilities accrued during the course of the marriage, including mortgages, credit cards, student loans, marital business debts, and medical debts are considered a part of the marital estate. The debts and liabilities will be split equally (50%/50%) between the spouses in equitable distribution or equitable apportionment, just like the assets. In North Carolina, marital debts are debts acquired from the date of marriage until the date of separation. In South Carolina, marital debts are debts acquired from the date of marriage and before the filing of marital litigation. How do you determine the appropriate division of assets and debts? How to classify and divide marital assets and debts is something that is usually agreed to by the spouses in a Separation Agreement. Look at equitable distribution or apportionment as a complex and creative math problem to provide 50% of the marital estate to each spouse without making additional work or costing additional money for the spouses or attorneys. For example, the division of a retirement account sometimes requires a special court order called a Qualified Domestic Relations Order to divide the account. Drafting and submitting a Qualified Domestic Relations Order costs additional money and time, so if there is a way to make both spouses whole (each receiving half of the net marital estate) without dividing up the retirement account, that is preferred. Lindsey Dasher is licensed in both South Carolina and North Carolina to help you understand your property rights in relation to equitable distribution or apportionment. Contact our office if you have further questions about your property rights upon separation. |
AuthorLindsey Dasher is the Managing Partner at Dasher Law PLLC Archives
March 2023
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