Monthly Archives: December 2015

Ways to deal with custody issues around the holidays

Experts are aware of this situation and mention the fact that family courts have a tendency to fill up around the holiday season, with custody disputes often being a focus. Many parents choose to alternate years, where the child spends one holiday with one parent in one year and in the next year with the other, if the situation permits.

A written parenting time plan can help to avoid these issues. Although each plan will be custom designed for the parents and children that it governs, the salient facts are that it should be in writing and both parents should agree to it. This gives a firm foundation from which to proceed as well as providing a way for the court to understand the situation if a problem subsequently arises.

Custody battles have the potential to be traumatic to everyone involved, especially the children that both parents will naturally wish to shield from the consequences of the dissolution of the marriage. Family law attorneys will tell their clients that the focus of courts when dealing with these types of matters will be the best interests of the child, and parents who are in such a dispute should follow that precept as well.

Source: The Huffington Post, “Holidays, Divorce and Who Gets The Children?”, Jason Levoy, Dec. 23, 2015

Bankruptcy and Divorce in North Carolina

If both spouses have debt and agree to file for bankruptcy, this is generally best done before a divorce. However, if both people cannot agree to file for bankruptcy, filing after a divorce is completed may be the best way to go. Individuals who file for bankruptcy alone and then file for divorce may still find themselves having to pay off the spouse’s obligations because the asset division process assigned them some of their spouse’s debt.

Another instance where someone may want to file for bankruptcy after a divorce is when they owe money and their spouse has a large income. If people exceed a certain household income, they may not be eligible for a Chapter 7 bankruptcy filing, which would normally allow them to discharge their debts without an obligation to pay them back.

When individuals go through a divorce, they may be able to settle certain important issues through negotiation or mediation. However, if a couple is not able to agree on matters like asset division, custody or spousal support, they may end up having to litigate their divorce. A lawyer could explain how the law determines issues related to a divorce and represent someone in court.

“Gotham” star ordered to pay child and spousal support

North Carolina residents who are fans of the television series “Gotham” may have heard about the ongoing child custody dispute between actress Morena Baccarin and her estranged husband Austin Chick. The parents have a 2-year-old son together, and they have shared legal custody of the boy since separating. After co-parenting in New York, Chick decided to move to Los Angeles, and a fight over physical custody ensued.

In a recent development in their divorce case, Baccarin was ordered to pay Chick both child support and spousal support. Baccarin will have to pay $2,693 per month in child support and $20,349 in spousal support. The monthly spousal support order is indefinite, but it will terminate if Chick gets remarried.

Three months after Chick filed for divorce from Baccarin, news came out that Baccarin was romantically involved with her co-star on ‘Gotham,” Ben McKenzie. It was also revealed that Baccarin was pregnant with McKenzie’s child. According to court documents, Chick decided to move from New York to Los Angeles after he learned that Baccarin had a boyfriend.

When two married parents decide to separate, it is often necessary to ask a judge to make temporary orders for child custody and spousal support. Although a temporary order may be changed later on, it can set the precedent for the permanent court order. An attorney may be able to help a parent who is separating from their spouse to petition for temporary orders for child custody and spousal support.

Boxes, Bows and Gifts to the Marriage

By Matthew Jackson

The holidays are generally a time of family togetherness, merriment, and gift exchanges. Because of the traditions and hustle and bustle of the holiday season, many clients wait to seek legal services until after the holidays. Yet, it is commonly realized well before the New Year that a separation/divorce may be looming. Waiting until after the business and traditions of the holiday season allows a person to avoid potentially awkward conversations with family and muddled schedules for the holidays–after all, no one wants to complicate and introduce negativity to a time that is supposed to be filled with enjoyment and gifts. However, how might giving and/or receiving Christmas gifts (or any other gifts during the marriage) prior to separation be affected once the separation process begins?

Generally, property acquired by either spouse during the marriage is considered marital property and subject the presumptive 50/50 split many Judges enforce in litigation. However, depending on the circumstances, gifts are treated differently. There are a few nuances to be mindful of and observe:

First, gifts from family, friends or parents (even paramours which may be applicable considering we are talking about divorce) to one spouse are presumed to be the separate property of that spouse and would pass outside the 50/50 split. This presumption may be overcome if the other spouse can show lack of donative intent to just the one spouse, or that it was intended to be a gift to the marriage by the gifting party. So, in the event your soon to be ex-mother-in-law has a real soft spot for you and admits that it was a gift to the marriage under cross-examination at trial, your ex-spouse probably gets to keep the gifts from her family and friends and vice versa.

Second, in the situation where one spouse gifts to another spouse, there is the opposite presumption applied by the law that it is to be a gift to the marriage as a whole. Again, evidence to the contrary can overcome that presumption. Just be mindful to avoid saying something like “this is for you honey, no matter what, even after you leave me for the pool boy”. A practical consideration is that many people like to video record their Christmas mornings or other special occasions, so be careful not to say something definitive, like the above.

A final thought regarding marital gifts: gifting real estate. The rule regarding conveying property from one spouse to both spouses by the entireties creates a strong presumption that the land is now marital property and subject to a 50/50 division. Most people are not 18th-century French Aristocracy, so many spouses may not be looking to get their husband or wife some land for a Christmas gift. However, it’s not uncommon for a spouse on their second or third marriage to convey a deed from one spouse in real estate to both spouses. Land that is paid for, free and clear and owned outright from the bank could then be converted from separate property to marital property if it creates a tenancy by the entireties. The law presumes that the land conveyed in this way is marital property, even if it was fully paid for long before the marital relationship in question. You may overcome this presumption only by clear, cogent and convincing evidence (which is a higher burden required than in the above two situations). You may find it necessary to do so when executing a deed of trust on wholly owned property in order to gain access to liquid capital (i.e. refinance). The bottom line is that if you put his or her name on it, the characterization of the real estate as separate property at a later divorce litigation will complicate the process and often result in a windfall for the non-gifting spouse in the form of a marital interest in property that otherwise would not have been.

Gift giving is often times rewarding and provides enjoyment to see the excitement in the recipient. Receiving gifts can be just as fun and offers a sense of gratitude toward the giver. However, whether you are giving or receiving gifts this holiday season, and possibly considering separating, be mindful of who and what you are giving to whom and what gifts are given to you and/or your spouse by friends and family. Focus on quality time with your loved ones and ringing in a New Year that brings a promise of new possibilities.

5 Tips for making transition easier during the holidays by Jessica Middleton, M.A.

Tis the season?
We have entered one of the busiest seasons of the year. Halloween is a faint memory, and we are all gearing up for more celebrating, more family and more fun!…right?

Well, not all of us.What do you do when you are dealing with the grief of divorce? How do you balance managing your child’s holiday schedule? How do you deal with questions about why your partner is not with you at the family dinner this year? January 1st feels so far off, how do you make it to the finish line? The first step is to know you absolutely can and will make it through.

Here are 5 tips for making this transition a little bit easier:

1. Be gentle with yourself: You may experience a myriad of emotions including anger and sadness. This is ok, so you should be sure to nurture yourself, and give yourself the same compassion you would give to someone else.- Be sure to eat well and find time for rest and relaxation.- Allow yourself to grieve, and talk to others, but try not to wallow.

2. Do something different!– You don’t have to be locked into traditions. Use this time to determine what traditions you want to maintain, and, establish new traditions and memories.- As your life is going through this transition, it can be a good time to take inventory of what you want and identify what genuinely makes you happy.- It’s ok to say no!- Set healthy boundaries with family and friends. Let them know that things are different for you this year, and you may not be up for everything they ask of you.- Don’t feel the need to take on too much. Set limits without feeling guilty.

3. Ask for help/develop a support network: Even if you are someone who is used to being the “shoulder to lean on” now is the time to realize when you need the help.- You may find support in a close friend, clergy, a counselor, etc. Do not let pride interfere with asking for help. This may feel like an isolating experience, but you do not have to go through it alone.- While social networking sites can be helpful for support, they also tend to lead us to compare ourselves to others. If you find yourself feeling jealous, angry, or sad, then it might be time to put down the iPad.

4. Be ok with not being ok: The process of divorce and post-divorce can be life altering for you and your children. The holiday season magnifies emotions, positive and troubling.- You do not have to have to be “picture perfect.”- Let go of expectations and take it one day at a time.

5. Practice gratitude: Even in the most trying time, it can bring comfort to celebrate and reflect on what wehave.- Giving back to the community can be a good starting point for turning resentments into gratitude. Sometimes the smallest things can bring the greatest joy.Have fun! – Have lunch with friends, catch a movie, have fun shopping, or take a quick getaway.Embrace each smile and the sound of laughter. This is a great time to discover yourself all over again