Category: Marriage

Siemens Family Law Group celebrates marriage equality under the law

Siemens Family Law Group - NCSiemens Family Law Group has always advocated for equal protection under the law.  Same sex marriage in North Carolina will offer same sex couples the equal protection of the law of marriage that benefits heterosexual couples.  From a legal perspective, this is a just and proper result, and one we fully support.

See The Citizen-Times for the story and pictures from Friday’s Buncombe County marriage celebrations:

Supreme Court paves way for same-sex marriage

Same-sex marriages begin in Asheville Friday, Oct. 10

Some Do’s and Don’ts of Divorce

 Like it or not, people going through a divorce may find themselves in situations that quickly become very contentious, even when both parties agree that it is in their best interest to part ways. Below is a list of “Do’s and Don’ts” from www.Findlaw.com, that might help to prevent this difficult situation from becoming unbearable.

THE DOs

DO be reasonable and cooperate as much as possible with your soon-to-be-ex. Reasonable compromise yields quicker and easier results in divorce cases.

DO support your children through the process. It is even tougher on them than it is on you. Don’t make them pick sides.

DO let your spouse know when and where you will spend time with your kids while you work out permanent custody arrangements. Your spouse might think you’ve made a run for the border – and if your soon-to-be-ex has to ask the police to track you down, that won’t look good during custody or visitation hearings.

DO fully disclose all your assets and property. A court can throw out a divorce decree based on financial deception, putting you back in court years after you thought everything was final.

Do ask your attorney if anything doesn’t make sense. Your attorney works for you, and should help you understand every part of the divorce process.

THE DON’Ts

DON’T make big plans to take a job in another state or move out of the country until your divorce is final. Your new life could interfere with getting your divorce finalized.

DON’T violate any temporary custody or visitation arrangements. It could make it tougher for you to get the custody or visitation rights you prefer.

DON’T “give away” property to friends or relatives and arrange to get it back later. Hiding property can mean your spouse can take you back to court to settle those assets.

DON’T go it alone. Divorce is complicated, and an attorney can make sure that your interests are protected.

AND A FEW WE’VE ADDED:

DO come to your meetings with your attorney prepared with updates and requested information.

DO engage the services of a therapist to help you through the emotional aspects of divorce.

DO engage the services of a therapist to help your young children understand family changes that result from divorce, and

DON’T discuss your case and/or your attorney’s advice with friends and family.  Bear in mind your disclosures may create witnesses if settlement efforts break down.

 

Why Mediation Works

“Reactive devaluation”.  That is the take away term from a mediation training I attended in May of 2012.  The term describes a phenomenon I”ve identified as a mediator, divorce lawyer and one time Husband, but it took the training to give that phenomenon a name.

In the context of divorce mediation, parties generally harbor negative feelings about their spouse or former spouse.  Those negative feelings compromise the ability of one party to hear the other, no matter how valid or important the message.  Polarized parties react by devaluing the message because they don’t like the messenger.

For a while, I thought mediation worked because parties in mediation recognize they can control the outcome and avoid the uncertainty of discretion exercised by a judge.  I still think that’s true in part.  Good lawyers in mediation certainly understand controlling risk.

But, as I continue to mediate for parties in the context of divorce, it is increasingly clear to me that it is my ability to serve as a substitute messenger, and a filter, that brings people to agreement.  As a mediator, I find it rewarding to carry and deliver important messages that might otherwise be reactively devalued and not received.

There is a connection between this concept of “reactive devaluation” and Stephen Covey’s 6th habit of empathic listening, the habit of seeking first to understand before being understood.  Negative feelings and emotions can interfere with the implementation of that habit.

At the recent recommendation of a great judge, I’ve read Viktor Frankl’s book, Man’s Search for Meaning.  This book was foundational for Covey, and it ties nicely into the concept of reactive devaluation.  Frankl (and Covey) emphasize that we have the freedom to choose, at all moments of life, how we will react, even in the worst of circumstances.

Mediation is a great tool when you are the messenger getting shot, the one doing the shooting, or both. You have the freedom to choose how you will react to the difficult circumstances of divorce.  We can help you hear important messages.  We can help you deliver them.

Choices

Recently, my husband and I were in a counselor’s appointment with my middle son. He has been struggling and we were all looking for a little guidance. The counselor told our son he is at a crossroads and now must make a choice on what kind of person he wishes to become. He can go down a dark path, feeling as though everyone is out to get him, lashing out because he feels angry and alone, and dwelling on the perceived unfairness of life, or he can choose to focus on building his strengths, moving his life forward, maybe outside his comfort zone, and make a choice not to feel like a victim.

This made me think of the choices we all have every day. I hear people say they “don’t have a choice” or he/she “made me” do something, but the reality is we always have a choice. One of the most important choices we have is how we react when other people’s actions affect us.  This could be as simple as choosing to ignore a friend or colleague when they behave rudely, or as difficult as choosing not to play the role of victim when a spouse seeks to end a marriage. When a marriage ends, it seems to create an endless stream of choices, thrust upon us at a time when we are at our most vulnerable and scared.  What’s next? Which lawyer do I choose? Is mediation an option? Who gets what? Where to live? What about the children? The list goes on and emotions run very high, possibly clouding the choices available to us along the way. We can choose to react from a place of pain and hurt, lashing out at a spouse who no longer chooses to share a life with us. Or we can nurture ourselves, and make the difficult choice to try to resolve each of the upcoming issues with respect for those we have loved or who have loved us.

I feel certain, in time my son will make the right choice. He has already taken steps toward improving his life. I believe it can be empowering to “take the high road” and try our best to make choices from a place of knowledge and compassion, rather than choose to strike out from a place of pain and emotional reaction. What choices will you make today?

by Kathleen F. Abbott, NCCP

It’s Not Over ‘Til It’s Over

In North Carolina, parties can’t typically appeal decisions of a Trial Court until the Trial Court has addressed all the pending issues.  In the family law context, that means, until the Trial Court has resolved each claim for relief, including claims for attorney fees, it is not time to appeal.  There are exceptions to this rule, but the exceptions are few.

The Court of Appeals has dismissed 2 appeals at our request, because issues remain for the trial court to decide in the case, in the same case!  The first appeal in our case was brought after a favorable ruling by the Trial Court on the date of marriage. (See N.C. Court of Appeals Opinions, 2008 unpublished opinions, Duncan v. Duncan), http://appellate.nccourts.org/opinions/

At the time of this appeal, the Trial Court had not yet ruled on equitable distribution, alimony and attorney fees.  The Court of Appeals dismissed the appeal.

The second appeal came after the equitable distribution trial, and after our client had been awarded alimony, but before her attorney fee claim had been resolved. (See N.C.Court of Appeals Opinions, 2012 Duncan v. Duncan), http://appellate.nccourts.org/opinions/

Again, the Court of Appeals has dismissed the appeal.

We expect a third trip to the Court of Appeals when the issue of attorney fees is resolved, when there will be no remaining issues for the Trial Court to decide.

Sharpening the Saw

A few months ago I posted about a Covey Leadership training the Siemens Family Law Group attended.  I have watched the group practicing the habits since, and I think we have all gained personally and professionally.  I know everybody has practiced the 7th habit, because we have all taken some time off this Summer.

This week, I have taken a couple days at the beach.  Before I return to the office, I want to post about that 7th habit of re-creation, what Covey calls “sharpening the saw”.

The metaphor goes like this: you can’t saw wood all week and expect the saw to perform the same way Friday as it did when you started Monday.  The saw needs to be maintained, it needs to be sharpened.  You might say you have too much wood to cut to take time to do the sharpening, but that will only make the saw dull and ineffective.

I have encouraged every member of SFLG to take time off this Summer, for good reason.  Time away from the job allows for re-creation.  An opportunity to rediscover talents and interests.  An opportunity for fresh perspective and insight.  I know I am coming back sharper, with more ideas and a renewed desire to care for clients.

But the real message here is for clients and prospective clients.  Separation and divorce are some of the toughest life experiences humans endure.  In the past 24 months, I have known clients, and their former partners, who have become so overwhelmed by the circumstances and events of their lives that they experienced tragic consequences. I believe they forgot to care for themselves along the way – they neglected to sharpen their saw.

You can’t afford not to take care of yourself.  Take a day off and take more if you can.  Go for a ride, a run, a hike.  Read, paint, play music.  Do whatever it is you used to do that brought you joy.  Re-create yourself.  You will be happier for it, and better able to manage whatever comes your way.

We want our clients to do their best to take care of themselves.  Clients who know how to sharpen the saw are better able to follow our advice, make better decisions, and help us to get better results.

Stay sharp and count on us to do the same.

Are you prepared for a possible “Gray Divorce?”

While browsing the Asheville Citizen-Times website on August 13, 2012, we came across a terrific article by guest columnist Haleh Moddasser about “Gray Divorce.”  Although the article targets older women,  we feel Ms. Moddasser’s article contains important information for all of us,  regardless of gender and whether you may be young, middle-aged or whatever comes after that.  Given that family and financial circumstances can change unexpectedly, be it by death, accident, or divorce, it pays to plan ahead and be informed. Follow the link to learn more:  http://www.CITIZENTIMES.com/apps/pbcs.dll/article?AID=/201208140015/LIVING/308140016

 

 

 

Are You Really Married?

Most married couples never question the legal validity of their marriage, and most have no reason to.  Those who chose non-traditional forms of solemnizing their marriage, though, might want to take a closer look.

For a marriage to be valid under current North Carolina law, the parties must express their intent to marry either (1) in the presence of an ordained minister of any religious denomination, a minister authorized by a church, or a magistrate, and with the consequent declaration by the minister or magistrate that the persons are husband and wife; or (2) in accordance with any mode of solemnization recognized by any religious denomination, or federally or State recognized Indian Nation or Tribe.  N. C. Gen. Stat. §51-1.1.

The current marriage statute is substantially more liberal than in years past because it accepts the validity of Native American ceremonies and any religious denomination.  Nonetheless, it retains its emphasis on the presence of a minister or magistrate.  Couples who were married by people whose credentials as a minister were questionable have, in turn, had the validity of their marriage questioned.

For example, in Pickard v. Pickard, 176 N.C. App. 193 (2006), the parties were married by an officiant who had paid $10 to become a minister of the Universal Life Church, and who had performed only one marriage ceremony – the one being questioned.  The trial court found that the officiant was not a minister and, therefore, the marriage was not valid.

Similarly, the statutory expansion to recognize Native American ceremonies did not occur until 2001, and couples who were married by such ceremonies prior to that date might find the validity of the marriage questioned for purposes of determining alimony and other marital obligations.

Most marriages occur in recognized religious institutions or ceremonies and are unquestionably valid.  Those who choose alternative means of solemnizing their marriage should ensure that their ceremony is officiated by a person recognized by North Carolina law to declare them married.