Separation Agreement

When we accept a case involving separation, we typically contemplate guiding our clients down one of two roads: 1. negotiation of a separation and property settlement agreement without court involvement, or 2. filing a lawsuit.  Here we address the first of these roads.

 

WHAT IS SEPARATION? In North Carolina, you do not need to have any specific form or paper in order to be legally separated.  Legal separation occurs when one spouse leaves the marital home and stops living together under the same roof with his or her spouse.  At separation, at least one party must have the intent of remaining separate and apart.  This “intent” does not mean either party can’t hope for reconciliation under better circumstances, but it does mean that separate households are being created for the foreseeable future. The law presumes that spouses have separated when there is an obvious change in living arrangements and one spouse’s intent to remain separate is expressed.

 

AGREEMENT TO SEPARATE VS. SEPARATION AND PROPERTY SETTLEMENT AGREEMENT: WHICH ONE AND WHY?   It is best for spouses to separate after having discussed and negotiated a written agreement to separate that both have signed in front of a notary.  This type of written agreement, referred to as a “Consent to Separate” or “Separation Agreement”, typically states that the parties have agreed to live separate and apart, as if unmarried, and that neither will accuse the other of “abandoning” the marriage.   This agreement to separate can be as simple as that, or it can be part of a more detailed contract that addresses property settlement, child custody and support and spousal support and alimony.  We call an agreement to separate, which includes these additional provisions a “Separation and Property Settlement Agreement”.

 

When spouses can successfully negotiate a complete Separation and Property Settlement Agreement, they can avoid the expense and uncertainty of involving a Court in deciding matters highly personal and complex matters.  Spouses who reach agreements ideally understand what to expect from each other so they can go more easily go about the process of reorganizing their lives.  The only thing typically left for those spouses to do is to file for divorce at the conclusion of one continuous year of separation.

 

HOW CAN YOU HELP ME WITH THE SEPARATION AND PROPERTY SETTLEMENT AGREEMENT?  We begin the process of preparing a separation agreement by carefully listening to you in order to clearly understand your concerns and goals.  We will understand the economics of the marriage, the needs of children and the nature and extent of the marital estate.  Once we have an understanding of these things, we can put the framework of an Agreement together.

 

In the process of generating the property settlement portion of an agreement, we may ask you to bring us documentation, including mortgage, credit card, retirement, brokerage and bank statements.  If you or your spouse owns a business, we may involve a CPA to understand and value the business.

 

If it can be done in a calm and rational manner, we encourage you to negotiate with your spouse as we prepare agreements so that the Agreement we prepare is one that is likely to be signed.  Negotiation can occur at the kitchen table, at settlement conferences in our offices, through mediated settlement conferences in mediators’ offices, or by and through attorneys.  Agreements that both spouses have participated in generating, and fully understand, are typically durable and enforceable.

Effective Habits at Siemens Family Law Group

The Siemens Family Law Group attended a FranklinCovey 7 Habits Signature Program in April, 2012.   We thought the program was important enough that all present members of Justice through proactivity and effective communicationthe group were in attendance and active participants.  The training was premised on the 7 Habits paradigm that Stephen Covey has created.

The first three habits are habits are foundational.  The first of these is proactivity.  Proactive leaders work from the circle of their own influence and are not distracted by outside influences over which they have no control.  Proactive leaders respond to stimulus proactively, rather than reactively.  Proactive leaders recognize that they have the freedom to choose their responses.

Effective leaders approach tasks with the end in mind.  They envision their end point and survey the route that will get them there.  If you don’t know where you are going, you can’t lead.  Beginning with the end in mind is the second habit.

Putting first things first is the third habit.  Leaders adopting this habit identify and sort out truly important tasks from those tasks that consume time and energy, but which are not truly important. Stephen Covey encourages identifying and eliminating distraction.  Leaders who are distracted are not effective.

With these foundational habits engrained personally, Stephen Covey suggests moving toward interaction with others from a win/win mindset.  The fourth habit of an effective leader, then, is to think win/win.  This type of thinking calls for the achievement of your goals, but also the achievement of the goals of those with whom you interact.

The fifth habit is that of empathic listening (as opposed to autobiographical listening) as you interact with others.  Empathic listening does not involve advice giving, probing, or judgment.  The goal of an empathic listener is to understand the feeling and substance being expressed by the speaker before the listener responds.  When that understanding is reached, rapport is established and one can then seek to be understood.

The habit of synergy is the sixth habit, the natural culmination of the previously described habits, and the ideal outcome of relationships with others.  Synergy is something Covey refers to as the “third alternative” which emerges when people collaborate.  When leaders synergize, they can create outcomes that are greater than the sum of the resources applied.

The seventh habit is the habit of recreation or re-creation.  He calls the habit “sharpening the saw”.  What he emphasizes is that effective leaders have a responsibility to take care of themselves mentally, physically, spiritually and emotionally.  Only by doing so can leaders expect continuity of leadership.

We came away from the training committed to applying these habits in our work for clients.  We see the potential for continued professional and personal growth as the 7 habits are applied.  A mission statement for the Siemens Family Law Group was borne out of the process: Justice through proactivity and effective communication.

Pay Up or Else: Enforcement of Alimony Orders Through Contempt Proceedings

It is all-too-common for supporting spouses who are ordered to pay alimony to refuse to make these payments, leading to contempt proceedings and a contempt order requiring the supporting spouse to pay or face arrest.

Because contempt orders are immediately appealable, in past decades supporting spouses could use the appeal process to extend their willful refusal to pay.  Nearly thirty years ago, the North Carolina Supreme Court noted this injustice:

Counsel correctly argued that supporting spouses have a lengthy period of virtual immunity from support obligations while cases work their way through the appellate process… We agree …that a more satisfactory answer should be found, but that answer can come only from the Legislature.

Quick v. Quick, 305 N.C. 446, 461-462, 290 S.E.2d 653 (1982).

Three years later, the General Assembly acted on the Supreme Court’s invitation in Quick by passing North Carolina Session Law 1985-482, which provides:

Section 1. G.S. 50-16.7(j) is rewritten to read:

“(j) ….Notwithstanding the provisions of G.S. 1-294 or G.S. 1-289, an order for the periodic payment of alimony that has been appealed to the Appellate Division is enforceable in the trial court by proceedings for civil contempt during the pendency of the appeal. …the Court of the Appellate Division in which the appeal is pending may stay any order for civil contempt entered for alimony until the appeal is decided if justice requires.”

This Act created a new norm for enforcement of alimony judgments during appeal:  contempt proceedings in the trial court continue during the pendency of the appeal, and stays of such proceedings now are the exception.

The North Carolina Court of Appeals recently affirmed this appellate enforcement of alimony through trial court contempt proceedings in Romulus v. Romulus.  The Romulus Court reviewed the Quick opinion and noted that our legislature has found a “more satisfactory answer” by making alimony orders enforceable by contempt pending appeal.

Dependent spouses should aggressively enforce any court-ordered alimony through contempt proceedings.  Supporting spouses should pay up or face the consequences.

Jim Member of the Law Practice Management Section

Jim Siemens is a member of the Law Practice Management Section of the North Carolina State Bar Association.  The section is devoted to supporting lawyers throughout the State in the delivery of legal services efficiently, professionally and ethically.  One of the functions of the section is to provide continuing legal education to young lawyers throughout the State, interested in establishing legal practices.  As law schools and law school graduates in North Carolina proliferate, more and more young lawyers are electing to begin solo and small practices.  The Law Practice Management Section can support these lawyers, ensuring the delivery of quality legal services to North Carolinians.  Jim is proud to support the efforts of the Law Practice Management Section.  Jim guides the Siemens Family Law Group in the delivery of legal services with the goal of providing efficient, effective, quality legal services to clients.

Alimony Denied

If you are a dependent spouse who is contemplating separation, North Carolina law sets a clear guideline to preserve your right to alimony:  do not engage in any sexual activity outside the marriage until you are separated.  If you do, or even put yourself in an ambiguous situation, you will damage yourself substantially.

North Carolina law provides that alimony shall not be awarded if the dependent spouse case engaged in “illicit sexual behavior” prior to separation.   N.C. Gen. Stat. §50-16.1A(3)a.     In the recent case of Romulus v. Romulus, the Court of Appeals applied this statute to bar alimony to a dependent spouse who had two ambiguous sexual encounters prior to her separation.

The Romulus boyfriend testified that, on two occasions, he either penetrated the dependent spouse with his finger, or touched her with his penis, but did not have intercourse because he was impotent.

The trial court and the Court of Appeals held that the boyfriend’s testimony established that the dependent spouse had engaged in illicit sexual behavior, and thus was barred from receiving alimony.  Even more, the Court held that, because the testimony established both sexual “inclination” and “opportunity” on her part, the dependent spouse could be presumed to have engaged in sexual intercourse.

Although the dependent spouse’s conduct in Romulus was ambiguous, North Carolina law and the Court’s application of  that law were not.  To preserve the  right to alimony, dependent spouses must not engage in any sexual conduct with outside parties prior to separation, and must avoid situations that could be characterized as demonstrating sexual inclination and opportunity.

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.

Buncombe County Family Court Changes

The Buncombe County Family Court and Offices have moved to the third floor of the Courthouse in reasonably renovated space.  The Family Court offices are accessible, functional and seem comfortable for the Family Court case managers.  There are 2 new courtrooms on this floor which are equally comfortable and functional.

The Family Court bench has changed as well.  The Honorable Ward D. Scott, Andrea F. Dray and Rebecca B. Knight now preside exclusively in Family Court.  Judge Julie M. Kepple, who began her career as a District Court Judge in Family Court, is now handling criminal matters primarily.

Conference space for lawyers and clients remains inadequate on the 3rd floor in our view.  There are also no wireless signals available in the Buncombe County courthouse.  We typically solve these deficiencies by meeting with clients on the 10th floor of the courthouse in library conference rooms.  We bring our PCs and portable printer in order to deliver services that are not otherwise readily available in the building.

We continue to support the efforts of the Family Court program and believe it is the right paradigm.  We appreciate the hard work of the Family Court case managers and staff.  And we appreciate the dedication, competence and patience demonstrated by the Family Court bench and clerks on a daily basis.

Katie Recognized by Pisgah Legal Services

Pisgah Legal Services is our local, amazingly productive and effective, legal non-profit organization.  Although there is little time to spare between this busy private practice and the family, putting some time in for people in this community who would not otherwise have access to representation is truly important.  Thanks for the kudos PLS!  Straight from the Fall 2011 Newsletter:

The MAVL Volunteer of the Month of September is Katie Fisher.   Katie practices primarily family law and some estate planning services at Siemens Law Office, P.A.  Prior to working at Siemens Law Office, Katie worked at Pisgah Legal Services for five years on the domestic violence team.

Katie volunteers for the MAVL program because she, “know[s] how great the need for legal services is in our community, having been on the front lines for a good amount of time.  I also know that the numbers of people needing legal assistance continues to rise and staff attorneys have to make tough decisions and turn people down all the time.  If I can help out by applying a skill I have and ensuring that a family can move on with a little more stability, then I’m still helping PLS in its mission to improve this community, which remains important to me out here in the private practice world.”

As a small token of our appreciation for her contributions to the MAVL program, we are giving Katie a $50 gift certificate donated by Laughing Seed Cafe.

Choosing a Divorce Lawyer in Asheville

How to Choose a Divorce Laywer

http://www.ashevilledivorcelawyer.com The divorce process is life changing, high stress and of serious consequence to you and your loved ones. Finding the right divorce lawyer at the outset is critical to the outcome. This piece provides an insiders guide to choosing a divorce lawyer in Asheville, N.C.. With a practice devoted to Family Law, the lawyers at Siemens Law Office, P.A. have the focus and expertise to help you navigate complex legal systems and to counsel you at critical junctures in your case.

For more information please visit Siemens Law Office, P.A

Updates to the 2011 N.C. Child Support Guidelines

Federal law requires that states receiving some federal public assistance and child support enforcement programs establish child support guidelines.  North Carolina receives both, and has therefore established the North Carolina Child Support Guidelines the Guidelines).  Federal law also requires that the Guidelines be reviewed and updated every four years to reflect economic growth, or lack of growth as we are currently experiencing, and what that means as far as the cost of raising a child.  Periodic review of the procedure behind using the Guidelines is a useful chance to smooth any wrinkles and speed bumps the previous version may have revealed.  From December 31, 2005 until December 31, 2010, we all worked with (and deviated from) the 2006 Guidelines.  As of January 1, 2011, the 2011 Guidelines apply.

For a look at the new Guidelines, including the parts that don’t involve the numbers,  click here.

So what’s new since 2006?  Here is a brief, 8 item list of substantive changes in 2011.

1.  Child Support in Domestic Violence Cases.  The Guidelines are now presumed to apply in all cases when child support is ordered as a remedy in Domestic Violence Orders of Protection (i.e., 50Bs, restraining orders).

2.  Retroactive Child Support. As was stated in the 2006 Guidelines, a trial court may still consider whether ordering a non-custodial parent to pay retroactive child support (i.e., “back support”) is appropriate and then figure out how much it should be.  There are two clarifications to this principle: (1) Based on a case that came through the Court of Appeals in 2009, the Guidelines now have an added rule that when any award of retroactive child support is made in a situation where the parents had a valid and unincorporated separation agreement setting the payment amount, the award must be calculated to match the agreed upon amount.  And, (2) when a court decides that retroactive support is appropriate, it has to calculate the amount based on the Guidelines that were in effect at the time and based on the salaries of the parties at the time.  In other words, if a party gets child support for the calendar years 2005 to present, the calculation of the amount owed prior to January 1, 2011 will be done with the 2006 guidelines and old pay records.

3.  High Income Parents and Low Income Parents. As in the 2006 Guidelines, the 2011 Guidelines apply to parties with combined monthly gross incomes of no more than $25,000.00 per month.  At $25,001.00 and up, it is considered to be a high income case, and a court is to set an amount of support based on the actual needs of the child.  The 2011 Guidelines simply clarify the 2006 rule with the actual wording of the statute: “…the court should set support in such amount as to meet the reasonable needs of the child for health, education, and maintenance, having due regard to the estates, earnings, conditions, accustomed standard of liv­ing of the child and the parties, the child care and homemaker contributions of each party, and other facts of the particular case.” (N.C.G.S. §50-13.4(c)).  For low income parents, the Guidelines have historically allowed an obligated parent to reserve a certain amount of income in order to ensure that he or she can cover their own basic expenses before paying child support to the other parent.  Application of the guidelines in these cases can be complicated, and a full discussion is not within the scope of this update.  Essentially however, the 2001 Guidelines allow the low income obligor to reserve $902.50 per month, and a minimum payment in the amount of $50.00 will be set for those who have an adjusted gross income of $999.00 or less.

4. Income in general. There are three areas of discussion regarding the definition of income for purposes of calculating child support.  First, based on a case decided by the Court of Appeals in 2008, the 2011 Guidelines specifically state that income received as child support for another child in the custodial parent’s household is NOT to be included as income.  Next, although the Guidelines have historically excluded most benefit payouts from being considered as “income”, the 2011 Guidelines get more specific and list the public benefits that are to be excluded.  Third, the 2001 Guidelines exclude from addition to a party’s income any payments made by an employer on an employee-parent’s behalf, directly to a third party.  For example, if my ex-husband’s boss pays for a disability insurance policy on his behalf, but does it outside of his paycheck and directly to the policy administrator, I can’t call the amount the boss pays to the policy administrator income.

5. Social Security. No real changes here, except for clarification of when a retired or disabled parent must continue to meet his/her child support payments.  If a child receives social security benefits because one parent has become disabled or has retired, and those benefits are more than the amount the disabled or retired parent would have to pay when the guidelines are applied, the obligation of the disabled or retired parent pays nothing.

6.  Preexisting Child Support Obligations. Under the Guidelines, a parent may deduct from his/her income any amount paid as child support for another child.  As of 2011, however, that deduction does not include payments made toward arrears on the obligation to that other child.

7.  Child Care Expenses. The 2011 guidelines clarify that child care costs incurred for purposes other than employment are not added to the calculation of child support.  These child care costs may be counted, however, if the parent who wants to count them has filed a motion to deviate from the Guidelines, and the Court finds the deviation appropriate.

8.  The Schedule. The “Schedule” is the numbers portion of the Guidelines.  It is a table that shows, based on the combined gross income of the parents with all credits and deductions, what economists assert is the cost of raising a child in 2011.  The most notable differences between the 2006 Guidelines and this current version is that low income families will not see as much of an increase in the child rearing costs as the number of children increases.  For higher income families, it appears that there is a greater increase in child rearing costs as the number of children increases.  The Schedule of Basic Support Obligations contained in the 2011 Guidelines can be viewed directly, beginning on page 7 of 18, by clicking here.