Category: Family Law + Divorce

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.

Family Law welcomes Attorney Kelly A. Walker

Family Law + Divorce

Kelly grew up in Huntersville, North Carolina. She graduated from Appalachian State University with a Bachelor of Science in Criminal Justice and a minor in Psychology. Kelly earned her Juris Doctorate from Elon University School of Law. As a law student, Kelly was a Dean’s Fellow, President of the Family Law Society, a Guardian ad Litem volunteer, and competed as a member of the Moot Court Board. Throughout her time at Elon, Kelly served as the student clerk for the Criminal Subcommittee of the North Carolina Pattern Jury Instructions Committee, working alongside a Dean at the law school and numerous Superior Court Judges. During her third year, Kelly was a student member of the Guilford American Inn of Court.

Kelly joined Oxner + Permar in 2015 and practices Family Law. She continues to advocate for children through the Guardian ad Litem program. Kelly is a member of the North Carolina Bar Association, the Young Lawyers’ Section of the Greensboro Bar Association, and the Family Law Section of the Greensboro Bar Association. Kelly also serves on the Alumni Council for Elon School of Law and is a member of North Carolina Advocates for Justice.

Oxner + Permar, is thrilled to have Kelly representing clients in all aspects of Family Law.