Divorce Differently |
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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. You have made the difficult decision to separate from your spouse, you have moved out of the marital residence, and now you are trying to address the important day-to-day implications separation has on your finances. Your spouse, however, is angry or in denial about the separation and refuses to negotiate the terms of a separation agreement or sign a separation agreement. In this situation, there are a few things you can do to try to protect yourself financially until you can start settlement negotiations with your spouse in earnest.
Child Support Basics
Child support is financial support paid by one parent to another in order to cover the reasonable needs of children for their health, education, and maintenance. Both parents share a duty to financially support their children. In North Carolina and South Carolina, the income shares method of calculation combines the parents’ gross income to approximate what the parents might spend on their children if they were living as an intact family unit. How is Child Support Calculated? The Child Support Guidelines in both North Carolina and South Carolina determine if and how much child support should be paid. The Child Support Guidelines are loosely based upon how many nights per year a child spends with each parent. If you are an extremely high-income earner above a certain annual gross income, your child support obligation is not strictly dictated by the Child Support Guidelines as your income is above the threshold contemplated by the Child Support Guidelines. The Child Support Guidelines in North Carolina and South Carolina have three “Worksheets,” which calculate and determine if child support is owed based on the physical custody arrangement for the children. In North Carolina, “Worksheet A” is used if there is a primary parent with whom the children spend most of their time, “Worksheet B” is used if the parents share custody of the children more equally, and “Worksheet C” is used if different children live primarily with different parents (i.e., Son lives with Mother primarily and Daughter lives with Father primarily). In South Carolina, “Worksheet A” is used if there is a primary parent with whom the children spend most of their time, “Worksheet C” is used if the parents share custody of the children more equally, and “Worksheet B” is used if different children live primarily with different parents. You enter the following information into the worksheets to determine if child support is owed:
We have 50/50 custody, does either parent have to pay child support? If the parents have comparable monthly gross incomes, there may not be a child support obligation required, or it may be so negligible that the parents agree that no child support will be paid. If one parent earns a significantly higher income than the other, then the higher-earning parent will typically have a child support obligation. My child’s other parent is not paying child support, do I have to let them see the children? Yes. A parent’s custodial right to see their children is not based on whether the parent is paying regular child support. You may not withhold parenting time with the children from a parent who is not paying child support. My spouse isn’t letting me see my children, can I stop making child support payments? No, you cannot stop making child support payments if your spouse will not allow you to see your children. Failure to pay child support could result in you being held in contempt of court, facing legal action for breach of contract, or having your wages garnished, among other unpleasant outcomes. When does child support end? When your child turns 18 and graduates from high school or your child becomes an emancipated minor. You can agree to financially support your child beyond age 18 and high school graduation within a Separation Agreement or Consent Order, but you are not typically legally obligated to do so in the absence of an agreement to do so. Can my child support payment be modified? Yes, child support orders can be modified if there has been a change in circumstances. For example, if one parent gets a new job with an increased salary, one child develops extraordinary medical needs, or a parent is laid off from their job, all of these situations could constitute a substantial change in financial circumstances that would warrant modification of a child support order. If you have questions about paying or receiving child support, please reach out to our firm and we would be happy to assist you. |
AuthorLindsey Dasher is the Managing Partner at Dasher Law PLLC Archives
May 2024
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