A divorce can raise complicated financial, emotional and legal issues. Here are seven important tips from a top family law expert. If you or someone you know is considering a divorce, you should read this fine and informative article written by Attorney Wade Harrison.
Wade Harrison, Attorney At Law in North Carolina and member of HighNetWorthDivorces.com in addresses some of the common questions that he answers during his consultations with clients.
Mr. Harrison is a highly experienced family lawyer who has handled a wide variety of family law cases.
Seven Questions That Family Lawyers Frequently Answer In Their Practice
- My spouse committed adultery, why should he or she be entitled to take any property we accumulated during the marriage?
- In North Carolina any married person has the right to an equitable distribution of property acquired during the marriage upon separation regardless of marital fault. However, some forms of economic fault may affect whether the division is equal.
- The theory of equitable distribution is that marriage is a partnership and property acquired during the marriage as a result of either party should be subject to equitable distribution.
- My parents gave me property. Can my spouse get that property in equitable distribution?
- Typically the court looks at the classification of the property as of the date of separation. The court uses a source of funds test. So if property exists on the date of separation and it is owned by one party or the other, then it is subject to equitable distribution if the source of funds used to acquire the property was marital. If some or all of the funds used to acquire the property are separate, then the property may be classified as either a separate or mixed asset. The court has no authority to divide separate property. Gifts from third parties are separate property.
- There is an exception to the source of funds doctrine. If a party obtained property prior to the marriage or by gift or inheritance during the marriage, and invested that money into real property and caused the title to the real property to be placed in the names of both husband and wife there is a presumption that the spouse contributed his or her separate property to the marriage. This presumption may be rebutted by the preponderance of the evidence.
- My spouse knows nothing about my business and has never worked in it. I built it from nothing. Am I going to be able to keep it?
- A business is like any other form of property acquired during the marriage. If, as of the date of separation, either party owns any part of a business or any portion of it is classified as marital property, then it is subject to equitable distribution.
- Whether a party can keep his or her business in an equitable distribution depends on several basic factors including but not limited to the following:
- Is a portion of the business separate? How much is that portion worth?
- How much is the marital portion of the business worth?
- Are there other marital assets that are worth as much as the marital portion of the business?
- Is it possible for the business owner to generate sufficient capital to satisfy the other spouse’s equitable claim?
- Two factors justifying an unequal division of the marital property relate to the liquidity of the marital estate and interest in preserving a business from the claims of a party.
- Ongoing business concerns complicate equitable distribution claims. There may be tracing issues that affect classification, valuation issues with battling experts or issues of active or passive appreciation that impact both classification and valuation. If the business is the primary source of cash flow for the family and the primary employer of one of the spouses, then both spouses normally have an interest in keeping the business going with the business owner spouse in control.
- Representing either business owner spouses or the non-owner spouse requires an early look at the business history, finances and other factors impacting the value of the marital portion of the equity in the business. It is important for family lawyers and their clients to think strategically when businesses are involved because the cash flow of the business is likely critical to every other aspect of the case.
- I have secretly obtained my spouse’s computer. There is no danger that my spouse will know I have it until he/she returns in three days. I believe there is evidence of an affair and a secret offshore account which we could uncover if we could get into this computer. We can also monitor my spouse’s e-mails because the e-mail account is synced with his/her phone. This is urgent and important. Can you help me get this information?
- Unauthorized access to electronic communication can subject an attorney and client to both civil and criminal penalties. Often these penalties turn on the owner’s expectation of privacy. If the spouse who has the computer gives the other spouse the access code, there may be no expectation of privacy. If a spouse leaves the device on in the presence of the other spouse, there may be no expectation of privacy. On the other hand if a spouse hacks into an account of his or her spouse or surreptitiously images a hard drive, civil or criminal penalties may ensue.
- It may be possible to convince a court to take control of the device to preserve evidence. It is certainly possible to put the other spouse on notice not to destroy any evidence and perhaps get the evidence without violating any laws. The key to doing this is to act fast, go to the court prepared with a strong reason why the device should be seized and preserved.
- My spouse is flirting with someone at work. I have created a different identity so I could start following the person on Twitter and become a friend on their Facebook account without them knowing it is me. You would not believe what I found out. May I show you?
- There are strong ethical prohibitions for attorneys in North Carolina to either masquerade as another or permit their staff or clients to do so in order to obtain information pertinent to an issue in the case.
- Not only is your attorney not supposed to listen to what you learned, he or she should not allow you to continue this deceit or use the information you glean from it in the proceeding.
- My spouse and I separated last week. He/she does not have everything out of the house and we are taking turns staying there with the kids. I was not seeing anyone before we separated, but there is this person at the club who has flirted with me and who I would really like to get to know. When may I date?
The answer to this is anytime you want to, however there are a number of factors you should consider before engaging in a casual sexual relationship, an economically entangled relationship or a relationship that could have an impact on your children,
- North Carolina is one of the few remaining states that recognizes the common law torts of alienation of affection and criminal conversation. As a married person, you may subject the person you date to a strict liability if you engage in a sexual relationship prior to separation. In this situation there may be disagreement about the date of separation. Post separation sexual conduct is not a basis for liability for the tort.
- While a claim for alimony or post separation support may not be barred by post separation sexual infidelity, pre-separation sex with someone other than a spouse is a bar to alimony for the dependent spouse and guarantees that the supporting spouse will be required to pay some alimony.
- If a post separation relationship is one that looks like a marriage, whether solemnized or not, it may be deemed cohabitation and bar an alimony claim.
- In many instances introducing a new object of affection into a family where there are children coping with the separation of their parents can cause substantial detrimental impact on the children. This in turn can affect the court’s determination of the best custodial arrangement for the children. Where the children are placed and who is responsible for caring for them can have a significant impact on both alimony and equitable distribution decisions. These decisions are highly discretionary, so before you date ask yourself how you think a neutral judge would view your actions?
- Since my spouse and I have separated my children won’t have anything to do with me anymore. We used to be close. Now it is like they are on my ex’s side and I am the enemy. What can I do?
It is not unusual for children of all ages to be affected by the separation of their parents. Here are some observations:
- The impact of separation on children follows somewhat predictable patterns that are roughly age dependent.
- It is convenient for a spouse to blame the opposing spouse for alienating the children. That explanation fits well within a paradigm of anger, betrayal, mistrust and suspicion. It also lets the accusing spouse off the hook for any of his or her actions that could cause the issues.
- It is certainly true that anger and hostility between parents makes it more difficult for children to adapt and tends to exacerbate problem behaviors.
- Children are very good at pleasing both sides and even using their parents’ adversarial relationships to their own advantage.
If a child appears to be enmeshed with a parent, fully engaged on the side of one parent against the other and takes on the role of spy, advocate, saboteur or protector in support of one spouse against the other, then it is important to take action to prevent potential long term detrimental issues for the child. Here are some possible responses:
- Document examples that support suspected alienation for use in a legal proceeding or in a forensic custody evaluation.
- Engage any therapists treating a child to look for alienating behavior and its effect on the child.
- Ask the court to appoint
- a guardian ad litem to represent the needs of the child,
- a parenting coordinator to address the behavior of an alienating parent
- or a neutral forensic evaluator to conduct a thorough evaluation of the children and both parents to determine whether the alienation exists and recommend a custodial arrangement that is best for the children
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