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1. Plan the conversation with your co-parent ahead of time.
Decide what, when, and how you will tell the children about the separation and divorce. Be sure to tell them on a day when they will have time to process the conversation and when you will be around to answer questions, comfort them, and provide a sturdy foundation for them to process their feelings. It’s a plus if both parents can be present for this conversation and stick around to support the children’s emotional wellbeing after the conversation. If you have multiple children, be sure to tell them at the same time so an older sibling does not inadvertently spill the beans to the younger children. 2. Explain in an age-appropriate way. Explain how the separation and divorce will affect the child in terms of living and sleeping arrangements, school and sports, and holidays. If you have kids of multiple ages, plan to talk to the children together in one conversation and then have separate conversations with the older children to discuss it on their age-appropriate level. An age-appropriate script for a younger child might be: “Mom and Dad are going to live in separate houses. We will both take care of you. You will sleep at Mom’s house some days and Dad’s house other days. We will let you know ahead of time where you will be sleeping. We could even work together to make a calendar so you always know what days you will be with Mom and Dad.” For an older child, it might be more nuanced and detailed: “Mom is moving to an apartment down the street. She will pick you up from sports practice after school on her days with you. You’ll spend one week with Mom and one week with Dad and we’ll alternate. You can call or talk to either of us whenever you want.” This won’t be a one-time conversation with kids. You will continue to talk about the why, how, and the logistics of the separation and divorce over and over again with your kids as they adjust to their new normal. 3. Do not overshare adult information, even with teens. Depending on your kids’ ages, they may desire to understand the reasons behind the separation and divorce. They may internalize fault and believe they are the reason you are getting divorced, if you don’t give some information regarding the reasons for the breakdown in your marriage; however, that doesn’t mean they can conceptualize your adult relationship and should have all of the information. They do not need to be privy to the legal proceedings, court documents (even if it is an agreement between you and the other parent), mediation dates, court dates, child support, and spousal support, among other adult matters. They do not need to be informed on the amount of child support Mom pays Dad and whether she has paid child support that month. You can shield your children from conflict between you and your spouse by keeping the children on a need-to-know basis. The children need to know where they will sleep each night, who will pick them up from school/practice/clubs, and when they’ll need to participate in family or individual counseling to help them through this transition. 4. Speak Kindly About the Other Parent. Avoid blaming or assigning fault in the separation and divorce. When speaking with your children, focus on you and your co-parent being a unit in co-parenting and lead from the “we” position. Don’t lead with “Dad had an affair” or “Mom is leaving us.” It is more appropriate to say something like “We have been trying to fix our relationship and it’s not working. We need to live in separate houses and just be friends and your parents now, not spouses.” This is a more neutral position that will allow your children to continue to build a solid relationship with each parent, rather than blaming one parent (or themselves) for the divorce. 5. Tell the Truth. There are a lot of unknowns at the beginning of a separation and divorce. Don’t promise things you might not be able to deliver, like that they won’t have to move, or they will stay in their same school. While you might desire that outcome in your divorce, it may not be possible. Tell the truth and reassure them about the things you know will stay the same. 6. Maintain consistency throughout both homes. While the kids might struggle to adjust and transition between parents’ houses, keep your rules, behavior expectation and consequences, bedtimes, and mealtimes as consistent as possible in both homes. Maintaining consistency provides children with the structure and foundation they need in a time of many unknowns. If you are struggling to figure out how to address these issues with your children, reach out to our office to schedule a consultation. We can provide referrals to great therapists who work with children of divorce to process their complex emotions and give them coping strategies. We can also help you navigate the legalities of separation and divorce in North Carolina or South Carolina. When separated and divorced parents have a difficult time communicating about their children, there’s a smartphone app for that! There are actually several co-parenting apps, but the one we see most commonly utilized by parents is “Our Family Wizard” (others are “TalkingParents,” “AppClose,” and “2Houses,” among others). Using a co-parenting app usually only comes into play in a divorce if one or both parents are having a difficult time keeping the topic of conversations strictly limited to child-related issues. Utilizing a co-parenting app can eliminate or limit hostile back and forth with your co-parent. Divorce is an emotional and difficult road and conversations with your co-parent can be similarly emotional and difficult. A co-parenting app can help both parents effectively co-parent, and also includes many other useful features, which we discuss below.
Communication By utilizing a co-parenting app, all communications between the parents will be in writing and preserved with a date and timestamp, so no one can say something rude or inappropriate and then delete or edit it. Our Family Wizard messages are preserved if needed to refer back to later, or if needed for a court proceeding. A co-parenting app is a much more streamlined method of communication compared to text messages or emails. Calendar Our Family Wizard and other co-parenting apps also have a calendar feature to see the children’s schedules, the parenting time schedule, and holiday schedule(s) at a glance. Co-parents are constantly juggling the parents’ work and travel schedules, the children’s extracurricular activity schedules, doctor’s appointments, therapy appointments, and the day-to-day activities that raising kids requires. A co-parenting app calendar allows for all child-related events to be recorded in one place, which eliminates unnecessary communication with a co-parent. Child-Related Expense Reconciliation Most co-parenting apps also provide a way for the parents to reconcile child-related expenses by uploading receipts and breaking down on a pro rata basis how much each parent owes for child-related expenses. By dealing with joint expenses online, you can avoid the uncomfortable conversations about what each parent owes the other. You can also avoid math mistakes when dividing up the bills, since the app does the math for you. Child-Related Document Portal Another wonderful feature of most of these co-parenting apps is that you can upload important documents related to the children to the secure portal, so no one has to maintain their own paper copies or hound the other parent for originals. Insurance cards, copies of passports, school information, and more can be saved in the information portal for easy access by both parents. If communication with your co-parent is going haywire, reach out to us to schedule a consultation. We can advise you on your best next steps to streamline your communications with your co-parent in order to cultivate a more peaceful co-parenting relationship. Generally, the IRS rules only allow one parent to claim the child as a dependent on his or her taxes. Per the IRS, the primary custodial parent is the one who is eligible to claim the minor child as a dependent on their taxes each year. The primary custodial parent is the parent with whom the child spent the most overnights that tax filing year. It is not permitted for both parents to claim the same child on their taxes in the same year. There are many nuances to these IRS rules, so it is best to discuss your tax situation with your tax professional or CPA. Your family law attorney is not a tax expert. Family law attorneys commonly address this issue within the parents’ Separation Agreement, however, so this is one situation where tax law and family law are interconnected.
If you share equal parenting time of the child with the child’s other parent and there is not one primary custodial parent, the IRS rules dictate that the parent with the higher Adjusted Gross Income (“AGI”) claims the child as a dependent on their taxes. If the parents make an equal amount of money, then there are other agreements you can make to resolve the issue of which parent claims the child as a dependent. It is best to address these issues in your Separation Agreement prior to your divorce. One solution is that you and your co-parent agree to alternate yearly who claims the minor child as a dependent. For instance, Mother claims the child in odd-numbered years and Father claims the child in even-numbered years. If there are two children, you could agree that one parent claims one child each year. If there are three or more children, you can agree on an alternating schedule so that each parent claims at least one child as a dependent each year. It may be necessary for one parent to complete the IRS Form 8332, the “Release of Claim to Exemption for Child by Custodial Parent,” in order for the other parent to be permitted to claim the child as a dependent pursuant to the parents’ Separation Agreement. If this is confusing, it’s not just you! Family law matters can be very complicated. If you need an family law attorney to guide you through this process, please reach out to schedule a consultation. 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. |
AuthorsLindsey Dasher and Catherine Smith are experienced family law attorneys at Dasher Law, PLLC. Archives
May 2024
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