Posts By: Kelly Walker

Temporary Total Disability vs. Temporary Partial Disability: What’s the Difference and What do They Mean to You?

Temporary Total Disability vs. Temporary Partial Disability: What’s the Difference and What do They Mean to You?

When it comes to workers’ compensation benefits, there are two major kinds: temporary total disability and temporary partial disability. If you find yourself injured at work, you may have heard both of these term. You might also be wondering, “Just what exactly do these terms mean and what is the difference between the two?”

Temporary Total Disability

  • Temporary total disability is when you are temporarily out of work completely. In other words, because of your injury, you are unable to work at all. However, the expectation is that you will improve and eventually return to work. This is not a permanent disability.
  • If you qualify for temporary total disability, you will be paid at the rate of 2/3 of your average weekly wage. If you make $360 dollars a week you will be compensated approximately $238 a week — pretty straightforward.

Temporary Partial Disability

  • Temporary partial disability is for when you are unable to work your regular job due to your work injury, but you are able to do some work. Because you are not working your old job, chances are the pay will be lowered to match the work you are doing.
  • When you’re on temporary partial disability, you will be paid at the rate of 2/3 of the difference between what you made on your old job and what you are able to make on your new job. For example, if you made $360 a week at your old job and $200 a week at your new job, you would be compensated approximately $106 from your temporary partial disability benefits — meaning your weekly total would now be approximately $306 a week.

Unfortunately your employer can have you perform whatever job they’ve created for you (e.g. something as menial as counting paper clips or sitting in a chair) until you recover and are able to work at your regular rate.  We refer to these as “make-work jobs.” If you refuse to do this job, then you are giving up your right to weekly disability checks and medical benefits.  

Sometimes an employer will find a reason to fire you while receiving temporary partial disability benefits. Unfortunately in the state of North Carolina, there is no law against firing you while you are on disability benefits, just so long as your employer cites another reason for your termination. If you are fired while you are receiving temporary total disability, your checks will continue.

If you have any questions about temporary total disability or temporary partial disability, contact one of our experienced attorneys at Oxner + Permar. We are devoted to keeping our clients informed of their rights and helping them navigate the ins and outs of workers’ compensation.

What is Equitable Distribution?

What is Equitable Distribution?

One of the most important things to consider when going through a divorce is “what happens to our assets and debts?” The division of marital assets and debts is referred to as Equitable Distribution. Here “equitable” means fair rather than a 50/50 split, so it’s important to note that the court has discretion to determine what is equitable or not. It is also made without regard for child support or alimony.

When making an Equitable Distribution of property the court usually follows a three-step process:

  1. They classify property as “marital,” “divisible,” or “separate.”

 

  • Marital property is presumed to be all property acquired during the marriage by either or both parties and owned by either or both parties on the date of the separation.
  • Separate property is any property acquired before the marriage or after the separation by either party.
  • Divisible property accounts for passive decrease or passive increase in value of your marital property after the date of separation.

 

  1. They calculate the net worth of the property.
  2. They distribute the property in an equitable manner.

An Equitable Distribution must be filed before a judgment for absolute divorce is entered. (The judgment is entered when it is reduced to writing, signed by the judge and filed with the clerk of court). The failure to assert a claim for equitable distribution prior to the entry of a divorce judgment will bar the right to assert an equitable distribution claim except in certain narrow circumstances. Here are some factors that the court takes into consideration when determining whether the division is equitable (though this is certainly not an exhaustive list):

 

  • Your income, property, and liabilitiesHousing security safety mortgage finances saving concept. People exchanging house keys. Two humans on floor next to home symbol pass keyring.
  • Any obligations for support from a prior marriage
  • Duration of the marriage
  • Age, health (physical and mental) of both parties
  • Acts of either party to maintain, preserve, develop, waste, neglect, or devalue marital or divisible property after separation
  • Need of the parent who has custody of the children

 

Equitable Distribution is intended to ensure that your assets and debts are fairly divided during a divorce. If you have any concerns or questions, don’t hesitate to contact one of our experienced attorneys.

When is it Appropriate to Modify Child Custody of Child Support Agreements?

When is it Appropriate to Modify Child Custody of Child Support Agreements?

Two boy in children car seats, traveling by car and playing with toys and tablet, summertimeWhen it comes to child custody cases I often have clients ask, “When is it appropriate to modify the terms of child custody or child support?” Of course, in these situations, modifications should only be made with your child’s best interests in mind. So the steps needed to get any kind of modification approved involve evaluating your child’s needs.

 

Child Custody

 

There are two main types of child custody agreements: contract and court ordered. We’re going to focus on court ordered custody agreements, as there is no ability for modification with a contract between two parties.

 

To make changes to a court ordered child custody agreement either both parties must agree on the modification or there must be evidence of a significant change in circumstances that affect the welfare of the child and that a modification is in the best interest of the child.

It falls upon the parent requesting the modification to provide evidence to support their child’s change of circumstances. For example some things that could support a request are:

 

  •  Relocation of one or both parties.
  •  Inadequate living conditions for the child.
  •  Substance abuse by a parent or custodian.
  •  Instability of a parent or custodian.
  •  The emotional or physical health of the child or parent.
  •  Loss of a parent or custodian’s job.
  •  A change in the child’s performance at school.

 

Of course, this is not a complete list. There are many additional things that could support modifying a custody agreement. The main thing to keep in mind is: are your child’s needs and best interests being considered and accommodated?

 

Child Support

 

Modifications to child support agreements require a significant loss in income for the party responsible. Some factors that may be considered are:

 

  •  Significant loss of income.
  •  Changes in factors used to determine support (such as daycare expenses or medical insurance).
  •  Loss of a job.

 

However, be aware that as with child custody cases, decisions will be made with your child’s best interests in mind.

 

If you have any questions about child custody or child support, don’t hesitate to consult an attorney. Make sure that both your rights and your child are being protected.

Could Living with a Partner Negatively Affect or Terminate Alimony Payments?

Could Living with a Partner Negatively Affect or Terminate Alimony Payments?

Dealing with a separation is always difficult. As you are trying to sort out the emotional strain, the financial burden might be the last thing you want to think about. Alimony payments can help alleviate the financial stress of a separation, but are you aware of the things that could cause alimony payments to cease? It’s important to make sure you are in the know.

There are two major factors that cause the termination of alimony payment:
1. The death of either the supporting or dependent spouse.
2. The remarriage or cohabitation of the dependent spouse.

These terms seem pretty straightforward—death and remarriage are both easily defined, but what about cohabitation? At what point does a couple’s relationship fall under the definition of cohabitation?

In order to prove that a couple is cohabitating, there must be evidence that they are living together continuously and habitually. They must also take on the lifestyle of a married couple: e.g. sharing duties and obligations that would be expected of married couple. This can include a sexual relationship, but that is not always necessary.

It’s also important to note that a couple’s intent isn’t the deciding factor in whether or not a couple is determined to be cohabitating. A couple can claim that they’re not cohabitating, but if their relationship and lifestyle clearly falls under the umbrella of cohabitation, then they are cohabiting in the eyes of the law. However, if a couple’s cohabitation status is difficult to determine based purely on objective factors, then a couple’s intent will be considered.

Of course the court will base their ruling on fact-driven analysis, weighing several factors to determine a couple’s cohabitation status. Some of these factors are fairly obvious and things you might have considered such as length of time they’ve stayed at the partner’s residence; whether or not the dependent spouse has another residence that they maintain or continue to use; or whether they participate in their partner’s childcare routine (e.g. picking up kids from school).

If you are living with someone and are concerned that cohabitation can affect your alimony payments, here are a few factors to consider:
Whether or not you drive each other’s vehicles.
Whether or not you or your partner moved in furniture.
Whether or not you cook meals together.
Whether or not you answer the home phone at the residence.
Whether or not you attend church together.
Whether or not you drive around town together.
Whether others have observed you and your partner showing any display of love and affection.

These are only a handful of the factors used to determine cohabitation. If you have any questions about cohabitation or what factors could lead to the termination of alimony payments, be sure to contact an attorney.

If you or your ex-spouse receives alimony payments and is in a new relationship, be aware that cohabitation can cause termination of alimony payments. It’s important to know what situations can lead to the termination of alimony.