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What Do Judges Consider in Alimony Cases?

What Do Judges Consider in Alimony Cases?

What Do Judges Consider in Alimony Cases? By Amy A. Edwards The factors guide judges in reminding them of the most important things. Either spouse may seek alimony if he or she earns less than the other in North Carolina, although there’s no specific dollar amount that determines by how much less. While we have guidelines in child support cases that compute an amount based on incomes and certain child-related expenses, we don’t have anything of that nature for alimony. Each party prepares a budget as a trial exhibit, which includes income and living expenses. If the judge awards it, the amount of alimony and how long it will be paid is discretionary. Alimony Factors: Incomes/Benefits NC judges must consider a list of factors in alimony cases. The first factor to consider is how much income each spouse has, and sometimes what a spouse has the capacity to earn. Also considered is unearned income, which is not shown on a W-2 statement, such as dividends, rents, retirement payments, disability, social security payments and employment benefits such as medical insurance (and/or dental and vision insurance), retirement benefits, and marital property and debts. Alimony Factors: Each Person’s Situation The court considers each spouse’s individual circumstance, education, age, physical and mental abilities, and emotional conditions. For example, a 25-year-old spouse and a 60-year-old spouse will be treated differently based on medical conditions and the ability to work. Their needs and expectations, such as the anticipated date of retirement or going back to school, also vary. Marital misconduct of either spouse may also be considered. Alimony Factors: History of the Marriage The court also looks at the standard of living that the parties established during the marriage. How long the parties were married and the contribution by one spouse to the education, training, or increased earning power of the other spouse are other factors. One party might have kept the home-fires burning for the last ten years, caring for the children while the other devoted his or her energy to obtaining a degree or advance in a profession, improving the family income. In fact, the statute also requires the judge to consider the “extent to which the earning power, expenses, or financial obligations of a spouse will be affected by reason of serving as the custodian of a minor child.” Alimony Factors: Miscellaneous The court looks at family obligations, such as paying child...

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Digital Privacy: Does Your Separation Agreement Have It?

Digital Privacy: Does Your Separation Agreement Have It?

Digital Privacy: Does Your Separation Agreement Have It? When negotiating an agreement about your divorce, you think of dividing assets like the cars and the house. But people don’t always think about their digital property and privacy. There probably aren’t lots of “boiler plate” paragraphs in separation agreements but you should ask your attorney to address it. What is Digital Privacy? My definition of digital privacy in divorce cases includes your ability to exercise sole exclusive use and ownership of your personal data, be it by key keypad, smart phone or computer. While there are legitimate and lawful purposes for using each other’s personal data, such as applying for social security benefits or filing tax returns, there are many other uses your ex might want to make of your data, even if it is just being nosey. Protected Information A good separation agreement should define what type of information should be protected. Your ex should be required to maintain the confidentiality of your personal data, such as financial records, legal affairs, medical records (including any substance abuse or mental health records), employment, records, and military or school records. Social security numbers, taxpayer identification numbers, passport numbers, date of birth, mother’s maiden name, or any other similar identifying information should be held in confidence. Require other identifying information like your online account numbers and passwords, ATM transactions, your credit report, personal identification numbers (PINs), and info for online shopping web sites such as Pay Pal or Amazon to remain confidential. Posting or other sharing embarrassing and/or sexually explicit or sexually suggestive material should likewise be prohibited. Access and Security of Digital Data  By the time you’ve shared a child or a marriage, you can probably guess each other’s passwords or PIN numbers. Your first plan of attack is to change your passwords and other barriers to access. Get a copy of your credit report and close accounts you no longer use. In the agreement, list examples of what is considered a violation. The most common examples are accessing the other party’s Facebook or other social media account, accessing his or her phone, text or voice mail messages, and e-mail messages. Public Embarrassment and Humiliation  The law related to social media and what can or cannot be used or posted is constantly evolving, as is the technology we use. It can be difficult to determine what is, or is not, acceptable because these issues implicate Constitutional freedom of speech and the definition of what is a crime. There are thousands of situations that could...

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The Top Five Reasons a Divorce Matters in North Carolina

The Top Five Reasons a Divorce Matters in North Carolina

The Top Five Reasons a Divorce Matters in North Carolina By Amy A. Edwards In North Carolina, a spouse can file a claim for divorce only a separation of at least twelve months. Besides the ability to allow someone to remarry, a divorce is important for a number of reasons. This article isn’t legal advice, and it does not cover all of the reasons. But it highlights a few examples of why someone who is served with a complaint absolutely needs to contact a lawyer immediately. Reason #1 – Marital Property Married people who separate can file a claim for equitable distribution, asking the court to divide marital property equally (instead of just relying on which name is on the title or deed). Our state creates a deadline for filing those claims, and the clock starts ticking when a divorce complaint is filed. Failure to properly file for marital property division within the correct time period means it is permanently lost. Reason #2 – Health Insurance Family plans that cover both spouses and any children change the moment a divorce decree is entered. As of that moment, a spouse is no longer “related” for purposes of a family plan because they are no longer a family member. Children of the person who provides health insurance remain on a family plan after a divorce. Reason #3 – Estate Rights Inheritance rights between spouses are completely different from those of non-spouses. This is a very complicated area of the law that can be related to whether a claim for marital property. Examples of potential rights upon the death of a spouse include an allowance of money, the right to a share of the assets if there is no will, and the right to contests a will. Designation as a spouse or former spouse can involve Social Security benefits, military benefits and other survivor’s benefits. Reason #4 – Liens Against the House Married people are sometimes protected from creditors if only one of them created a debt in his or her sole name. For example, the innocent spouse who did not sign a credit card application is usually, but not always, protected from money judgments that would otherwise become a lien against the marital residence. The moment the innocent spouse becomes an ex-spouse, this can trigger a lien against the property even if the debt (such as credit card debt) is not...

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All About Adultery in North Carolina (Part 1 of 2)

All About Adultery in North Carolina (Part 1 of 2)

All About Adultery in North Carolina (Part 1 of 2) By Amy A. Edwards   Merriam Webster defines adulterate as a verb, an act “to corrupt, debase, or make impure by the addition of a foreign or inferior substance or element.” North Carolina alimony laws don’t call it adultery. Instead, adultery as used in alimony cases is a form of marital misconduct called “illicit sexual behavior.” The definition is “acts of sexual or deviate sexual intercourse, deviate sexual acts, or sexual acts defined in NC Gen. Stat. §14-27.20(4), voluntarily engaged in by a spouse with someone other than the other spouse.” NC Gen. Stat. §50-16.3A.   People have argued about which acts between the spouse and third party meet the definition of illicit sexual behavior. In 2011, a wife unsuccessfully argued that her behavior didn’t meet the standard of illicit sexual behavior because the man she had been with wasn’t able to complete the act they had started but were unable to finish. Romulus v. Romulus (2011). The Romulus case gives an exhaustive list of definitions (starting on page 47) of various acts. Adultery and Alimony In North Carolina, divorce is a “no fault” process based on a full year of separation between a husband and wife. However, we strongly cling to fault in our alimony laws. For many reasons, alimony can be awarded based only on finances, meaning incomes and reasonable living expenses. But if the supporting spouse commits adultery, he or she automatically has to pay alimony. The reverse is also true. The dependent spouse automatically loses alimony if he or she cheats. Other types of marital fault are only factors the judge must consider, and they don’t demand a particular result as adultery does. If both spouses have cheated, the judge then denies or awards alimony in his or her discretion “after consideration of all of the circumstances.” NC Gen. Stat. §50-16.3A. How Do You Prove Adultery? Adultery is almost always a circumstantial case. After all, most spouses aren’t advertising their infidelity. It is rarely proven by direct evidence. Therefore, our law resorts to a standard called the “inclination and opportunity doctrine.” Owens v. Owens, 28 NC App 713 (1976). This means the spouse alleging adultery must prove two things. First, was there an opportunity for the spouse and third party to be together in privacy?  Second, if they had the opportunity to be together, were they inclined (likely) to have sex?   Like any other disputed fact, witnesses may...

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What Do You Want Out of the Divorce Process?

What Do You Want Out of the Divorce Process?

What Do You Want Out of the Divorce Process?  People don’t live their lives expecting litigation, a terrible separation or the other parent taking their children away from them. Although it is not always the case, people often find themselves overwhelmed by unexpected circumstances by the time they make it to the attorney’s office. It is not uncommon for a client to schedule an appointment after recently discovering the other spouse (or the other parent) has been making plans to separate for some time. Almost all cases begin in the “triage” stage, when someone’s day to day life has just been turned upside down. The “emergency phase” of a case usually involves necessary arrangements for the short-term, such as where to live, what to do about immediate financial support, and when a parent has visitation with a child. Once that emergency phase of the case settles down, perhaps there is a temporary agreement or temporary court order in place. What Happens Now? After the emergency phase of a case, the real work begins. Take inventory of what matters in your life. Clients who seek counseling or therapy tend to uncover important goals, especially when they’ve made accommodations for their mates over many years. Turmoil can provide new opportunities. You might decide to return to school or consider relocating to another city or state. Or, you want to make healthy long term co-parenting a priority not only for you children but your future grandchildren so your family won’t have to endure drama at events such as graduations and weddings. A career change might also be an option based on your new situation. Talk To Your Attorney Like any other relationships, attorney-client relationships involve all kinds of personalities. Some clients have clear objectives and take an active role in their case, others don’t. By default, your attorney should be advocating for as much of the marital property as possible, and if you are a parent, the goal is to get as much time with the child or children as possible. That’s obvious. But there’s so much more than that. Make sure to share your personal goals with your attorney if he or she doesn’t specifically ask. Although our job is to advocate for you, we will do a better job of advocating if you clearly express your plans. For example, we could try to structure alimony to coincide with the completion...

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