Divorce Differently |
Divorce Differently |
You might have heard about celebrities like Britney Spears or Dennis Rodman filing for an annulment and wondered why they would seek an annulment instead of filing for divorce. Most people do not begin their marriages with the expectation that it will end (except by death do us part). When most people seek to end their marriages, they usually do file for divorce. In rare and limited circumstances, however, an annulment may be the more appropriate resolution. Annulment is a legal process that declares the marriage never existed because the marriage contract was not valid to begin with. Most marriages will not be eligible for annulment, but there are some that will be.
What are the grounds for obtaining an annulment of your marriage? North Carolina grounds for annulment (N.C.G.S. § 51-3):
What’s the difference between a divorce and an annulment? The annulment of a marriage means that legally speaking, the marriage never existed because the marriage contract was invalid at the time it was entered. A divorce legally dissolves a valid marriage. If your marriage is annulled, you do not have a claim to equitable distribution (in North Carolina) or equitable apportionment (in South Carolina) because there was not a valid marriage, so there were never any “marital assets” or “marital debts” that could be distributed upon the dissolution of the marriage. If you believe you may be eligible for an annulment or want to know more about your options for divorce, please call our office or click the button below to schedule a consultation. October is spooky season, and nothing is spookier to family law attorneys than invalid marriages. Betrothed couples in North Carolina should beware of officiants instantly ordained by the “Universal Life Church” and be sure to follow these steps to create a valid marriage in our state!
There are several steps to a valid marriage in North Carolina:
The Universal Life Church is an online program that allows someone to be instantly ordained as a “minister.” Their website states that the Universal Life Church was established in 1977 and the “church” has only two tenets: (1) do only that which is right, and (2) all should be free to worship as they see fit. Before the internet, the Universal Life Church provided “mail order” certificates giving the title of minister. The North Carolina Supreme Court ruled that a person who receives a certificate of ordination from the Universal Life Church is not “an ordained minister of any religious denomination,” (State v. Lynch, 301 N.C. 479 (1980)) as required by N.C.G.S. § 51-1. After this case was ruled upon by the North Carolina Supreme Court, the North Carolina Legislature enacted N.C.G.S. § 51-1.1, to protect the validity of marriages performed by Universal Life Church “ministers” prior to July 3, 1981. The people who entered into marriages with a Universal Life “minister” presiding prior to the State v. Lynch case could not have known that their marriage might be invalid, so the legislature sought to protect the innocent couples entering into those Universal Life Church-officiated marriages prior to the ruling. Marriages that occur after July 3, 1981 by Universal Life Church “ministers” are not protected by N.C.G.S. § 51-1.1. The State v. Lynch case law has been applied and affirmed in multiple later cases at the North Carolina Appellate Court level. Be sure whoever is officiating your wedding is qualified to do so under North Carolina law! Please schedule a consultation with our firm if you have questions or concerns about the validity of your marriage. An engagement ring can be a large financial investment for the purchaser and gift-giver. The traditional rule-of-thumb for purchasing an engagement ring is to spend up to three-months’ salary on the ring! Other times an engagement ring is a family heirloom, or a family diamond or precious stone that has been reset into a new ring especially for the recipient. But what happens to the engagement ring if the wedding doesn’t happen? Or what happens to the ring if you end up divorced? We provide the answers to these burning questions, below.
Who gets the engagement ring if the engagement is called off? In South Carolina, if an engaged couple calls off the wedding, the ring-giver will receive ownership of the ring after the engagement has ended. It does not matter which partner called off the engagement, as no “fault” is considered in the determination of engagement ring ownership. An engagement ring is considered a conditional gift given on the condition of marriage. If the marriage does not occur, then the condition has not been fulfilled and the ring should be returned to the original purchaser of the ring upon request. In North Carolina, an engagement ring is also considered a conditional gift. If the engagement falls through, no matter who is at fault for the break-up, the ring-giver is entitled to the ring. Again, this is because the marriage did not occur, and the engagement ring was given on the condition that marriage is fulfilled. Other states have various views on who receives the engagement ring if the wedding is called off. Some states’ laws say that if the recipient of the ring called off the wedding, they must return the ring to the ring-giver. If the ring-giver called off the wedding, then the recipient of the ring gets to keep the ring. Still other states say that the engagement ring was a simple gift, and the recipient of the gift gets to keep the ring even if the wedding does not occur. Who gets the engagement ring if you get divorced? In both North and South Carolina, if you get divorced, the engagement ring will generally remain the property of the recipient of the ring. This is because the condition of marriage has been fulfilled, and so the gift is no longer conditional. South Carolina courts have issued case law directly on this point. Additionally, an engagement ring is a gift that is typically given prior to a marriage and so the ring is considered “separate” property in a divorce. If the engagement ring was purchased or upgraded after marriage, using joint marital funds, then the ring would more than likely be considered “marital” property, and could be subject to equitable distribution (or equitable apportionment, if you’re in South Carolina) and the value would be considered in the overall distribution of your marital estate. If the ring is a family heirloom that you would like to have returned if you divorce, you would need to plan ahead for that circumstance. The best way to make sure that your family heirloom ring is returned from your spouse upon a divorce is to have a prenuptial agreement signed prior to your marriage. You could also enter into a postnuptial agreement after your marriage to ensure if you ever separated and subsequently divorced, you would receive your priceless family heirloom back from your spouse. Please reach out to our office to schedule a consultation about a prenuptial or postnuptial agreement to protect your precious family heirlooms, or if you have further questions about what might be considered marital or separate property. Once your divorce is final, you may think you are done with updating your legal documents, but think again! After your divorce is final, you need to update your estate planning documents to protect yourself and your children. Even though you are divorced, if you name your ex-spouse as a beneficiary in your will, that spouse will inherit from you if you do not update it. There are other important and necessary steps to take to update your estate plan, which are outlined below.
Revise your Will and create new Powers of Attorney, if desired. Identify your desired beneficiaries in your will regarding your asset distribution. Update or create your power of attorney to appoint a trusted friend or family member to make financial and healthcare decisions on your behalf, should you become incapacitated. If you named your spouse as your “agent” in a Durable or Healthcare Power of Attorney previously, that Power of Attorney naming your spouse as agent is automatically revoked upon divorce. You do want to have new powers of attorney put into place naming a different agent. Establish a trust for your minor children. In your will, create a testamentary trust that is established if you die before your children reach the age of majority. Appoint a trustee whom you trust completely to distribute funds to your children as minors. If you anticipate leaving a significant amount of assets to your children, you may want to establish trust terms that permit your children to receive their portions of the trust at an age older than eighteen to prevent your young children from squandering their inheritances. Name a guardian for your minor children. In your will, name a guardian for your minor children in the event that you and your children’s other parent die before the children reach the age of majority. You want to be sure that your wishes regarding your children’s guardian(s) are expressed clearly in a valid will, which will prevent any confusion or discord between your surviving family members about who should receive your children, should the worst happen. Update your beneficiary designations: Be sure to go through all of your life insurance policies, retirement accounts, investment accounts, POD and TOD bank accounts, etc. and update your beneficiaries. When you’re married, often your spouse is the sole beneficiary of these types of accounts. Once you are divorced, you want to be sure to name whomever you would like to receive these accounts upon your death. If you need to update your estate planning documents now that you are divorced, we can help. Click the button below to schedule a consultation, or give our office a call. If you know someone with alcohol addiction or alcohol use disorder, you know that it can wreak havoc on relationships, especially marriages. When a spouse is struggling to stay sober and relapsing regularly, it can cause the trust in your marriage relationship to deteriorate. In initial consultation meetings, we often meet a spouse who still deeply cares for their spouse with alcohol use disorder, but simply cannot continue to subject themselves or their children to the fall-out of having a spouse and parent in the household struggling with alcohol addiction. If you are in the same boat, there are options (and there is hope!) to negotiate a custody agreement outside of court rather than filing a contested child custody lawsuit.
Our team understands the priority of keeping your children safe with a parent with alcohol use disorder, while also recognizing and honoring that that the struggling parent is still a parent to your children. There is a way to craft a custody agreement that recognizes and bears both of those truths in mind. There are common-sense safeguards to include in a custody agreement to prevent the parent with alcohol use disorder from putting a minor child in harm’s way. There are basic restrictions to include in your custody agreement like not drinking within a few hours of receiving the child for parenting time or during parenting time and not driving the child after consuming alcohol. There are also remote alcohol monitoring devices like Soberlink or BacTrack that monitor a parent’s sobriety and aid that parent in continuing to stay sober in order to exercise parenting time. In custody agreements, we often recommend having the parent with alcohol use disorder agree to submit to alcohol monitoring as a prerequisite to exercising parenting time. If the parent fails an agreed upon alcohol breathalyzer remote monitoring test, that parent forfeits their parenting time. The parent with alcohol use disorder can agree to submit to breathalyzer tests only during parenting time or daily (even outside of their parenting time), if that is necessary. Sometimes a parent will agree to submit to alcohol monitoring in the short-term, for three or six-months, and then re-evaluate the custody agreement after he or she has had the opportunity to prove sobriety in the interim. The parent with alcohol use disorder must agree to submit to remote alcohol monitoring if you want to avoid court. There are many benefits of the parent agreeing to submit to remote alcohol monitoring. Most parents struggling to stay sober understand that they must be sober while they are with their children and exercising parenting time. Many parents want the opportunity to prove that they can maintain sobriety, parent their kids, and earn back their co-parent’s trust. They often would rather not go to court and have their personal issues preserved in publicly available court records, which they can avoid if they enter a custody agreement. If you or your children’s other parent has alcohol use disorder and you are thinking of separating, please reach out to our office so we can provide individualized legal advice that applies in your unique situation. 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. What is a Durable Power of Attorney? How to Obtain One and Who You Should Name as Your "Agent."8/31/2023
A Power of Attorney is a legal instrument that allows you to appoint another person to make decisions on your behalf, should you become unable to make those decisions yourself. There are two major types of Powers of Attorney: a Durable Power of Attorney and a Healthcare Power of Attorney. Today’s blog post will focus on Durable Powers of Attorney.
What is a Durable Power of Attorney? A Durable Power of Attorney is a legal document that allows you to appoint another person as your “agent” to make financial decisions on your behalf and handle your financial affairs should you become incapacitated and unable to handle your financial affairs on your own. The term “durable” simply means the powers granted to your agent are not terminated by your incapacity. Your agent is granted the power to act as you would be able to act in financial matters, including paying your bills and mortgage, selling your assets, obtaining loans in your name, transferring, withdrawing, or depositing funds into your bank accounts, filing your tax returns, accessing your safety deposit box(es), and more. Many people 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 I choose as my agent? The agent serves in a fiduciary role, which means that the agent must act in your best interests. It is important to choose an agent whom you trust completely to handle your financial matters, should you become incapacitated. This is an extremely important designation, and you should be sure that the agent you choose is someone you know will protect you and your assets. Many people choose their spouse as their agent because they know and trust that their spouse will make wise financial decisions on their behalf. It is wise to choose a back-up agent, should your first choice agent not be able to fulfill the role. When will my Durable Power of Attorney become effective? Depending on your individual needs, your durable power of attorney can be written so it becomes effective as soon as you sign it, or it can become effective only when a doctor declares you incapacitated. Speak with your lawyer to help you decide which option is best for you. How do I get a Durable Power of Attorney? It is best to work with a lawyer who is qualified and knowledgeable regarding your state-specific laws to prepare a Durable Power of Attorney document on your behalf. The Durable Power of Attorney must be signed by you before a notary public to be valid. Can I revoke my Durable Power of Attorney? Yes, as long as you still have the capacity to do so, you can revoke your Durable Power of Attorney. In North Carolina, you can revoke a Durable Power of Attorney by revoking it in writing or by burning, tearing, cancelling, obliterating, or destroying the Durable Power of Attorney for the purpose of revoking it. If you were married to the person whom you named as agent, but then you subsequently divorced, the Durable Power of Attorney is automatically revoked upon divorce. What do I do with my Durable Power of Attorney document after I execute it? Inform the person whom you have chosen as your agent (and any back-up agents) that you have executed this important legal document. Discuss the Durable Power of Attorney document with your agent(s) and give them a signed copy to keep for their records. Let your agent (and back-up agents) know where the original is stored, should they need it. Please click the button below to schedule a consultation with us or reach out by phone to discuss the preparation of your Durable Power of Attorney and your overall estate planning needs. |
AuthorLindsey Dasher is the Managing Partner at Dasher Law PLLC Archives
April 2024
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