Divorce Differently |
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Pets can be such an integral part of a family. When a couple begins divorce proceedings, who gets the pets? Dogs and cats, especially, are often treated and loved like a child in a family, but state law does not treat pets the same as human children when it comes to divorce. Today’s post focuses on our loving, loyal domesticated animals who bring us comfort, especially during tough times like going through a separation or divorce.
North Carolina Under North Carolina state law, pets are considered personal property and treated the same way in a divorce as your household furnishings, washing machine, or jewelry. That means that pets can be divided pursuant to a claim for equitable distribution, the same way couches, chairs, and bedframes may be divided. There is no claim for pet “custody” under North Carolina law. Most couples come to an agreement about who will take the pet(s) and care for them going forward. Some couples agree that the spouse who is not retaining the pet will be permitted to see the pet upon reasonable request, or even be the “pet sitter” if the spouse keeping the pet goes out of town overnight. Some couples agree to divide time with the pet equally and equally divide the cost of the pet’s veterinary care. Of note, if you acquired the pet before marriage, received the pet as an individual gift, or inherited the pet from a family member or friend, then you will receive the pet in the divorce. In the situations mentioned, the pet is considered separate property and is exclusively your pet (or property, as a pet is considered in North Carolina) upon divorce. There are many creative solutions to this pet issue if you and your spouse can come to an agreement. We focus on out-of-court solutions for our clients and in the situation of dividing up time with a pet, we especially believe that this is something that should and can be handled without a court’s involvement. While animals are extremely important to families, it is not appropriate to tie up the court’s resources by fighting over an animal in court if it can be avoided. South Carolina Similar to North Carolina, South Carolina treats pets as property. There are no “pet custody” laws in South Carolina that distribute the pet to the spouse most capable of caring for the pet. The pet is considered “separate property” if acquired prior to marriage or if the pet was a gift. If the pet was acquired after marriage, it is “marital property” that will be distributed alongside the rest of the marital estate pursuant to an equitable apportionment claim. If you are separating and concerned about what will happen to your family pets, please reach out by phone or by clicking the button below to schedule a consultation with one of our attorneys. In both South Carolina and North Carolina, if a spouse changed his or her name upon marriage, he or she can also change his or her last name upon divorce. State law does not allow a wife to change her first name or take on a surname she has never had upon divorce—a wife would need to go through a different legal name change process for that. State law permits a wife to resume her maiden name, or take a former surname in certain circumstances, which we will outline below. State law permits a husband to resume a former surname only.
What names can you use? In North Carolina, the “Resumption of Maiden or Premarriage Surname” statute (N.C.G.S. § 50-12) dictates the options for choice of last name upon divorce. The names a wife may resume in her name change pursuant to divorce are:
In North Carolina, if a husband changed his last name upon marriage, then upon divorce, state law also permits a husband to resume the surname he had prior to marriage. In South Carolina, a party may resume a former last name or the last name of a former spouse (S.C. Code Ann. § 20-3-180) upon divorce. Since the statute specifically names “a party” and does not specify that it must be “a wife,” either spouse who changed their name upon marriage can also request a name change upon divorce to a former last name or the last name of a former spouse. What is the process in North Carolina to change your name pursuant to divorce? When either spouse files for divorce, he or she can ask the court to allow a change of last name to one of the options listed above. This name change request is made in a Complaint if you are the spouse initiating the divorce proceeding, or in an Answer to the divorce complaint if your spouse initiates the divorce proceeding. There is a low fee (at the time of this writing, $10) for requesting a last name change pursuant to divorce. If you request a name change, that resumption of name will be granted in the Judgment of Divorce. A party should then proceed to the Social Security office and North Carolina DMV with the Judgment of Divorce and any other required paperwork to change your last name the same way you did when you changed your name upon marriage. What is the process in South Carolina to change your name pursuant to divorce? In South Carolina, a spouse can request to resume his or her pre-marriage last name upon divorce by requesting to do so in court at a final hearing. The spouse will have to answer certain questions from the judge to make sure the name change is not for improper purposes (like avoiding creditors or criminal prosecution). Once you have the Final Decree, you take the Decree along with any other required paperwork to the Social Security office and South Carolina DMV the same way you did when you initially changed your last name upon marriage. Please note the information in this blog post only applies to last names changed pursuant to marriage and resumed upon divorce. Upon divorce, you cannot change your first or middle name to a new name utilizing the process described above. Changing your first or middle name is a different name change process under N.C.G.S. § 101 “Names of Persons” in North Carolina and S.C. Code Ann. Chapter 49 “Change of Name” in South Carolina. Please let your lawyer know if you would like to resume a pre-marriage last name as part of your divorce. It is easiest to complete this name change while you are filing the divorce proceedings rather than addressing it after the divorce is finalized. Reach out to our office for help with your name change. We would be happy to assist you. Many people avoid thinking about death and end-of-life medical care. It is a difficult topic to broach and even more difficult to actually make definitive plans regarding your end-of-life wishes. An Advance Directive is a legal document that can inform your loved ones and medical providers how you would want your end-of-life medical care to be handled if you were unable to communicate those preferences.
What is an Advance Directive? An Advance Directive is sometimes called or a “Living Will” or an “Advance Directive for Natural Death.” The purpose of an Advance Directive is to give your healthcare providers instructions regarding whether to withhold or withdraw life-prolonging measures in certain end-of-life situations. An Advance Directive is not a “DNR” or “Do Not Resuscitate” Order. An Advance Directive is one way to communicate your preferences in writing if you are not able to communicate at the time a decision must be made. An Advance Directive dictates the following situations:
Do I need any other legal documents aside from the Advance Directive? An Advance Directive is often executed in tandem with a Healthcare Power of Attorney. An Advance Directive can give your Healthcare Power of Attorney guidance on exactly what life-prolonging measures you would prefer in an end-of-life situation. You can indicate in your Advance Directive if you want your Healthcare Agent to be able to override your instructions on the Advance Directive or if they must follow your instructions given in the Advance Directive. Many people execute an Advance Directive alongside the other three major estate planning documents (Will, Durable Power of Attorney, and Healthcare Power of Attorney) as an overall estate planning strategy. How do I get an Advance Directive? It is best to have an attorney prepare an Advance Directive for you to sign. For your Advance Directive to be valid, it must be signed before two witnesses and notarized by a notary public. What should I do with my Advance Directive once it is executed? Provide signed copies to your medical providers, healthcare agent, and closest family members or friends. Provide a signed copy to your doctor to keep on file in your electronic medical record. In North Carolina, your Advance Directive can also be registered with the North Carolina Advance Health Care Directive Registry. You will receive a registration card with a QR Code on it that can be scanned to access your Advance Directive document quickly and easily, should the need arise. While it is important to have an Advance Directive, it is even more important to have open and honest conversations with your loved ones about how you feel regarding receiving life-prolonging medical care and hypothetical end-of-life situations. Communicating your preferences can save a lot of heartache and conflict between family members trying to decide what is best for you if you are unable to communicate. Please click the button below to schedule a consultation or reach out to us by phone to discuss the preparation of your Advance Directive as an overall strategy for your estate planning needs. What is a Healthcare Power of Attorney? How to Obtain One and Who You Should Name as Your "Agent."9/7/2023
Most people do not like to think about worst-case scenarios like what would happen if they were to become incapacitated. As lawyers, we are trained to think about all the possibilities and to prepare our clients for unexpected events. In that vein, think about who you would want to make healthcare decisions on your behalf if you were unable to do so due to incapacity. In today’s world of longer life expectancies, it is more important than ever to plan for your future, as your healthcare agent named in a Healthcare Power of Attorney could be responsible for determining your long-term care needs for many years. Today’s blog post covers some basic information regarding Healthcare Powers of Attorney and how you could benefit from having one.
What is a Healthcare Power of Attorney? A Healthcare Power of Attorney is a legal document which allows you to name a person as your designated “agent” to make healthcare decisions on your behalf if you are unable to make those decisions for yourself. It gives broad authority to the agent to act in incredibly important healthcare situations where you are unable to make decisions. You can also specifically direct your agent regarding how you want certain healthcare decisions to be made. For instance, to whether to withhold or discontinue life-prolonging measures like artificial nutrition or hydration, whether to authorize an autopsy, and how to dispose of your remains. Sometimes, it makes sense to sign both a Healthcare Power of Attorney and an Advance Directive (sometimes referred to as a “Living Will”) at the same time to prepare for unexpected healthcare scenarios. Many people also execute all four major estate planning documents (Will, Durable Power of Attorney, Healthcare Power of Attorney, and Advance Directive) at the same time as an overall estate planning strategy. Who should my healthcare agent be? Most people choose their spouse, a family member or very close friend as their healthcare agent. You want to have discussions with your healthcare agent about your general wishes for healthcare and make sure your agent is on board fulfilling the role as you see it. While it may be uncomfortable, it is very important to discuss your wishes regarding potential healthcare scenarios with your healthcare agent including your desires regarding surgery, long-term care wishes, experimental medicine, and other common issues that might arise should your agent be called to serve in the role. It is wise to identify one or more back-up agents in case your first choice is unavailable at the time a healthcare decision needs to be made on your behalf. Who needs a Healthcare Power of Attorney? Anyone who is over the age of eighteen could benefit from having a Healthcare Power of Attorney. It is especially imperative to have a Healthcare Power of Attorney if you are divorced, at an advanced age, or if you do not want your next-of-kin to be the person who makes your healthcare decisions should you become incapacitated. A Healthcare Power of Attorney provides you with the assurance that the person(s) you trust the most will be handling your healthcare decisions should you become incapacitated. How do I get a Healthcare Power of Attorney? It is best to work with a lawyer who is qualified and knowledgeable regarding your state-specific laws to prepare a Healthcare Power of Attorney document. The Healthcare Power of Attorney must be signed by you in front of a notary public and witnessed by two disinterested witnesses (people who would not provide you with medical care and would not inherit from you if you died without a will). Can I revoke or change my Healthcare Power of Attorney? Yes, you can revoke your Healthcare Power of Attorney at any time while you maintain the capacity to do so. If you previously had your spouse as your agent, but then subsequently divorced, your Healthcare Power of Attorney is automatically revoked upon divorce. What should I do with my Healthcare Power of Attorney once it is executed? Inform the person you have chosen as your healthcare agent. Discuss the Healthcare Power of Attorney document with your agent and your physician(s) and give each a signed copy of the Healthcare Power of Attorney to keep on file. Let your agent know where the original is stored, should they need it. You can provide your Healthcare Power of Attorney to a hospital system or healthcare facility you frequent to keep on file in your electronic medical records. In North Carolina, you can also file your Healthcare Power of Attorney with the North Carolina Advance Health Care Directive Registry. You will thereafter receive a registration card with a QR Code on it that can be scanned to access your Healthcare Power of Attorney document quickly and easily, should the need arise. Please click the button below to schedule a consultation or reach out to us by phone to discuss the preparation of your Healthcare Power of Attorney as an overall strategy for your estate planning needs. |
AuthorLindsey Dasher is the Managing Partner at Dasher Law PLLC Archives
May 2024
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