Monthly Archives: March 2016

Restraining Order: Criminal or Domestic?

Written by Daniel Johnson of Willis Johnson & Nelson

When the tension of a relationship ending leads someone to react with violence or in a threatening manner, it is not uncommon for the criminal justice system to step in and place significant restrictions on an individual’s liberty through what are commonly referred to as “restraining orders.” These orders generally fall into one of two categories: domestic violence restraining orders and conditions of pretrial release. Often, individuals have both types of “restraining orders” in place at the same time. It is important for anyone charged with a crime of domestic violence to understand the differences between these two types of “restraining orders,” the impact that these orders have on their rights, and the consequences of violating these orders. The following is based on a common scenario in the criminal justice system that illustrates how “restraining orders” work.

When someone is arrested and charged with a crime of domestic violence, judges will set the conditions upon which an arrested person may be released from jail. In cases of domestic violence, magistrates often impose a “restraining order” in addition to requiring a secured bond. The “restraining orders” entered by the magistrate prohibit the arrested individual from having contact with the alleged victim and restrict the ability to visit the home and place of employment of the victim. If a child custody order is already in place, these “restraining orders” may require compliance with the order. These orders may also address the possession of personal property. If someone violates a “restraining order” imposed as a condition of release from jail, a judge may increase the bond or add additional conditions of release. Violation of these orders do not, however, lead to additional criminal charges.

The other type of “restraining order” that is often imposed is a domestic violence protective order (“DVPO”). These “restraining orders” are far more expansive than the no contact orders imposed as a condition of release from jail. In addition to prohibiting contact with someone, a DVPO can determine who maintains possession of a residence, a car, and personal property. A DVPO may temporarily determine custody of children and pets and may impose child support and alimony obligations. An individual subject to a DVPO cannot possess firearms. A DVPO is usually in place for a year and can be renewed. While in place, a violation of a DVPO can result in new criminal charges or civil contempt proceedings.

Whether subject to a “restraining order” due to an arrest or due to the imposition of a DVPO, the impact can significantly impact the rights of an individual and increase the exposure to criminal or civil sanctions. It is essential that people subject to such limits on their rights consult with an attorney to minimize their exposure and protect their rights.

The role of trusts in complex asset division

Couples who manage to accumulate wealth and experience a certain lifestyle during their marriage could be in for a surprise in the event of a divorce. A high asset divorce in North Carolina can have a dramatic effect on the lives and finances of the parties. Retirement plans might have to be changed in light of the asset division, associated with a marital dispute.

An offshore account might be one method someone might consider as a way to hide money from a spouse in anticipation of a dispute over an asset division. Such conduct might conflict with financial disclosure rules designed to prevent one spouse from hiding assets to circumvent an asset division. Trusts, however, might offer a method for parents to allocate assets to their children while shielding the assets in the event of their own divorce or the divorce of one or more of their children.

Setting up an irrevocable trust in which the beneficiary does not control the distribution of the assets or income of the trust is one method of protecting the assets from the beneficiary’s spouse in a divorce. Some courts limited the effect of income distributions from a trust on spousal support requests by ruling that only those payments actually made in the past to the spouse could be taken into consideration. The theory applied by the court was that future payments, if any, were not within the control of the spouse seeking spousal support.

Whether real estate and other assets in a trust become marital property in a divorce dispute depends upon many factors. Individuals contemplating the creation of a trust for their children, or individuals involved in a divorce in which an irrevocable trust might be an issue, might benefit from consulting with an attorney familiar with complex asset division.

The benefits of thinking about a parenting plan

When North Carolina parents who have young children go through a divorce, they may think a parenting plan is just another piece of paperwork to complete. However, these plans can have value when parents take the time to consider what will happen with their children once a marriage ends.

Ideally, a parenting plan serves as a guide to assist with scheduling and the changing needs of a child. In most cases, parents share legal custody. This means both parents have an input on major decisions while each parent makes day-to-day choices when having physical custody. In regards to physical custody, the parenting plan shows how a child’s time will be split between the parents.

Both parents likely need to work together and compromise to form a mutually beneficial arrangement, and this may be the best way to prevent or minimize conflict and the negative aspects of a divorce that children experience. The parenting plan presents an opportunity to identify and solve possible issues without court intervention.

If problems do arise during co-parenting, a detailed plan that considers the challenges a couple may face helps stop arguments as parents can turn to their agreed-upon plan instead of fighting. This gives parents a chance to focus on what they agreed on when they were in a more rational mindset.

Those going through a divorce may have trouble communicating with a spouse when making important decisions like those concerning a child or children. Using mediation or negotiation might help partners reach decisions that work well for everyone involved. When possible, using alternatives to the court process could allow both parents more control and freedom than when a judge makes determinations. Both parties should have separate legal representation throughout the process.

Financial planning important in divorce

North Carolina residents who are facing the end of their marriages should consider speaking to a financial adviser. This is a step many people put off until after the divorce, but at that point, they may have already made bad decisions that affect their future. When people have been less involved with the family finances, it may be their first opportunity to learn about the kind of planning they will need after the divorce.

For people who have been the stay-at-home parent, getting the house in the divorce while the other spouse takes liquid assets such as pensions might seem like a good deal. However, that person might not factor in the cost of upkeep and insurance on the house. The liquid assets might continue to appreciate while the other person struggles to pay for the costs associated with the home.

In one divorce, a woman’s husband took out a home equity loan on the house and did not tell her. As a result, the house she got was far more burdened by debt than she realized. A spouse might even attempt to conceal assets. A financial planner might be able to detect a deception like an offshore bank account.

A person who is considering divorce may also want to meet with an attorney. After talking with a financial planner, it might be possible to map out a strategy with the attorney. Things to consider might include whether one spouse will owe support to the other and whether joint custody will be sought if there are children involved. Another discussion may be whether to pursue mediation or negotiation or whether litigation will be necessary.

March Madness: NCAA Tournament, St. Patrick’s Day, Spring Break and …Alimony?

Typically when spouses decide to go their separate ways, there can be great difficulty in stretching income that would pay for expenses of one household to now pay for two. In North Carolina, the claim of alimony or spousal support is recognized and often brought by one party who is dependent upon the other spouse for economic support. A Court may look at the reasonable needs of the dependent spouse (the spouse who claims that they are in need of maintenance and support) to determine if they are truly in need of support from the other spouse. If the Court finds that a dependent spouse is in need and the supporting spouse has the ability to pay, after taking into consideration the supporting spouses reasonable needs, the Court may award alimony.

There is a caveat to the above, and that is the Court will also consider if the awarding of alimony or spousal support is equitable under the factors enumerated by North Carolina law. The month of March is unique in that it presents an opportunity to highlight several considerations that the Court may evaluate in the determination of whether an award of alimony is equitable under the circumstances. As you probably well know, March Madness brings with it a great opportunity to watch lots of college basketball, and the opportunity to waste a lot of money betting on games. St. Patrick’s Day is often associated with drinking in excess. These two events in the month of March highlight two typical fact patterns used in determining whether or not an award of alimony would be equitable. If a Court finds that one spouse, whether supporting or dependent, is engaged in excessive alcohol use or gambling, the Court may determine that it is more or less equitable to award alimony. The Court, however, is not bound to decide either way if the facts bear out excessive gambling or drinking.

However, too much fun on Spring Break could have more of an impact on the Court’s analysis. Many spouses in unhappy marriages may use vacation as an opportunity to take a break and perhaps stray from their marital vows. Illicit sexual behavior committed by either spouse can have a determinative impact on the Court’s analysis of an alimony claim. North Carolina law provides that if a supporting spouse commits illicit sexual behavior and the dependent spouse has not, the supporting spouse must pay some amount of alimony. Conversely, if a dependent spouse commits illicit sexual behavior and the supporting spouse does not, the Court must deny an alimony award. If both spouses commit illicit sexual behavior then the Court is not obligated by law to decide one way or the other.

The Madness of March brings the opportunity of warmer weather, spring break, basketball frenzies, and The Luck of the Irish. With all of the excitement ushered in with the promise of Spring, please keep in mind the dangers that the month of March may also present to spouses with respect to alimony.