Alan Krusch, Attorneys, Charlotte, child custody, Children, David Krusch, Divorce, dual citizenship, family law, foreign divorce, international couples, Krusch & Sellers, Lawyers, Leigh Sellers, Marriage, Mecklenburg County, North Carolina, Separation
What happens when couples separate or divorce, and one or both of them are also citizens of another country? Do you get a divorce in the United States? Will the divorce in the United States hold up in a foreign jurisdiction? What happens if the parties have children?
These are some of the increasingly complex questions raised when international couples decide to divorce. This article from Forbes illustrates the difficult issues that foreign divorces can bring, especially when children are involved. Although the article is written with a slant toward women, it has some good tips that can be applicable to both men and women.
Alan Krusch, Attorneys, Charlotte, child custody, Children, Collaborative divorce, Collaborative law, Divorce, Equitable Distribution, family law, Krusch & Sellers, Lawyers, Leigh Sellers, Marriage, Mecklenburg County, North Carolina, Property, Separation, Separation Agreement
According to a recent Forbes article, yes, divorces can in fact be diplomatic, even amicable (but, as the article points out, that doesn’t mean you have to be friends with your ex). In North Carolina, we call this process collaborative law or collaborative divorce. Both of our firm’s partners, Alan Krusch and Leigh Sellers, are trained in representing parties in collaborative divorces.
The main benefit of getting a collaborative divorce can be summed up in one word: Control. The article states that “settling a divorce amicably will provide both members of the couple more control over the separation of property, custody and other important matters . . . when a divorce goes to court, the judge ultimately decides who should be granted what.”
There’s truly no handbook for lessening the impact that separation or divorce has on children. Kids are often put in the middle of their parent’s arguments, which can leave lasting emotional scars that often take years to sort through.
This HuffPo article deals with the emotional trauma that the author went through during his youth baseball games where both of his divorced parents would attend. He writes, “The awkward baseball game is a prime example of where divorced parents can go very right or horribly wrong with their children. I know that most divorce kids, like me, think about their parents’ feelings way more than is readily apparent. I would try not to offend anyone, which weighed on me so heavily it would often bring me to tears.”
Parents – the best gift you can give to your children after separation or divorce is to try and ensure civility with the other parent, no matter how angry or upset you are. Whether you like it or not, you are most likely going to see the other parent at public and private events while your children are present. Awkward baseball games are only the beginning. Leave the kids out of it.
Check out this Forbes article about parents who get divorced and how to claim children for tax exemptions. The author questions whether even fighting over dependency exemptions is a good idea. When our firm drafts Separation Agreements for our clients, we almost always include a clause about how the parties agree to execute any forms necessary to effectuate the agreement, including any tax forms like the ones talked about in this article.
A lot has been said in the news recently about the so-called student loan debt crisis. Some commentators compare the current student loan situation to the housing bubble bust of 2008. The Washington Post now estimates that the total amount of student loan debt our country has amassed is over $1 trillion. And it’s not just a problem for college kids. The parents and grandparents that were helping to finance their relatives’ educations are now falling into delinquency on their loans at an alarming rate.
However, only recently has there been any talk about another hidden cost of the student loan debt crisis- the romantic cost. According to a recent study by NPR, the amount of loans a person may have after graduating college or grad school has become an impediment for dating and marriage. Here’s a basic scenario from the study: Boy meets Girl. Boy and Girl fall in love. Girl learns Boy is $150,000 in debt. Girl breaks up with Boy.
Is breaking up with someone over the fact that they have a lot of debt shallow and/or superficial, or merely practical in today’s unforgiving economy? Many couples are either ending their relationships or avoiding marriage because they are afraid of becoming responsible for their partner’s debts.
In North Carolina, the process by which both property and debts are divided upon separation is called “equitable distribution.” Under North Carolina’s equitable distribution statute, N.C. Gen. Stat. § 50-20, any debts that a person has going into a marriage is considered their separate property, which would include any student loan debt taken out before marriage. The statute defines separate property as “all real and personal property acquired by a spouse before marriage or acquired by a spouse by devise, descent, or gift during the course of the marriage.”
So technically, if your spouse takes out $100,000 in student loans before you got married, that means those loans are their separate property and you won’t be responsible for them, right? Technically yes, but practically, probably not. If you have any type of joint account with your spouse while you are married, chances are, a portion of that has probably gone to paying down the balance on those loans. On the other hand, if you or your spouse take out loans during your marriage for some joint marital purpose, then upon separation, those loans would be considered marital debt and subject to division under equitable distribution.
Relationships can be stressful enough without the added weight of someone else’s student loans. However, there are ways of dealing with these issues in a way that could protect your assets during and after marriage. You could get a Prenuptial Agreement before you get married, which could ensure that each person’s debts remain separate in the event of separation or divorce. Or, if you do happen to separate, you and your spouse could enter into a Separation Agreement and agree to keep your debts separate.
It will be interesting to watch how the student loan debate plays out, especially because it has wide-reaching ramifications for millions of Americans.
In Part 1 of this series, I wrote about some common misconceptions regarding abandonment in North Carolina. There remains a great deal of confusion surrounding abandonment, but it does not play as large a role as most people may think. Remember that the definition of abandonment is: “One spouse abandons the other where he or she brings their cohabitation to an end without justification, without the consent of the other spouse and without intent of renewing it.” In this post, I’ll talk about abandonment in the context of alimony, property rights, and issues with the abandonment of children.
Myth: Abandonment is grounds for alimony in North Carolina.
Fact: If you read the alimony statute for North Carolina, you’ll find that there are 16 factors listed for the court to consider in determining the amount and duration of alimony. Under the first factor, the court can consider “the marital misconduct of either spouse.” Marital misconduct, according to its definition, includes “abandonment of the other spouse.” Abandonment is only one factor out of many that is taken into consideration, but it is not a stand-alone ground for alimony.
Myth: If I separate from my spouse, a judge will think that I’m abandoning them and I will lose all my property.
Fact: In order for the divorce process to begin, someone has to separate and move out away from their spouse. Generally, we advise our clients that if they are the one moving out, they should make sure to take all of their possessions that belong to them or are important to them. If you leave something behind during separation, technically you have physically “abandoned” that property. It’s always much more difficult to try and get back property of which you are no longer in possession. It’s not impossible, and can be done either through a Separation Agreement or an equitable distribution trial, but there are no guarantees what will happen to your property if you leave it behind.
On that note, if you are in the process of separating and you want to keep possession of your house, it’s best if you try and remain in the house for the same reasons stated above.
Myth: If I move out and separate from my spouse, I will lose custody of my children.
Fact: Remember that there’s a big difference between moving out and separating from your spouse while remaining in your child’s life, and abandoning your child. Abandonment of a child can have fairly severe criminal and civil consequences.
Criminal child abandonment in North Carolina is defined as “any man or woman who, without just cause or provocation, willfully abandons his or her child or children for six months and who willfully fails or refuses to provide adequate means of support for his or her child or children during the six months’ period, and who attempts to conceal his or her whereabouts from his or her child or children with the intent of escaping his or her lawful obligation for the support of said child or children.” N.C. Gen. Stat § 14-322.1. Abandonment of a child in North Carolina is a Class I felony. In the civil context, abandoning your child may lead to you losing custody or visitation rights with that child in any future child custody dispute.
It’s always best to consult an attorney before taking any steps that could affect your legal rights, especially regarding issues dealing with children.
Quite frequently, people ask me about abandonment. It usually comes up in the context of “I want to sue him for abandonment” or “I want to move out, but I don’t want him to be able to sue me for abandonment.” I’ve often wondered where people are getting their information from, because abandonment is something I’m asked about a lot, but in most cases it’s not even an issue. Hopefully, I can clear up some common myths and misconceptions surrounding the word. Below, I’ve listed some facts about “abandonment”:
1) Abandonment is irrelevant to the divorce proceedings. North Carolina is a “no-fault divorce” state, which means that fault is never an issue in the divorce nor a ground for divorce (keep in mind that in North Carolina the divorce order is separate from the orders for equitable distribution and alimony where fault may be important). There are only 2 grounds for divorce in North Carolina: separation for 12 months and insanity.
2) There is no cause of action for abandonment. People often talk about abandonment as though it is something that you can be sued for, like breach of contract or negligence. To the best of my knowledge, there is no tort in North Carolina called abandonment.
3) Within the context of North Carolina Family law, “abandonment” has 3 elements. These elements are (1) one spouse brings cohabitation to an end without justification, (2) without the consent of the other spouse and (3) without the intent of renewing it. Panhorst v. Panhorst, 277 N.C. 664 (1971). In order to prove abandonment, you must prove all 3 elements.
4) Abandonment is not grounds for alimony, but it may be a factor for the judge to consider. I think that generally when people ask whether they can sue for abandonment, what they are really asking is whether they can use the abandonment to help them get alimony. There was a time when abandonment was grounds for alimony in North Carolina. N.C.G.S. 50-16.2 said that “A dependent spouse is entitled to an order for alimony when…the supporting spouse abandons the dependent spouse.” However, 50-16.2 was repealed in 1995 and replaced by N.C.G.S. 50-16.3A. Under 50-16.3A, “In determining the amount, duration, and manner of payment of alimony, the court shall consider all relevant factors, including the marital misconduct of either of the spouses…” According to N.C.G.S. 50-16.1A(3)(b), “marital misconduct” includes “abandonment of the other spouse.” So, all that means is that a judge should consider abandonment in determining the amount and duration of alimony, but abandonment itself is neither grounds for nor a bar to the receipt of alimony. Also, I think it’s important to keep in mind the definition of abandonment, which says that if there is justification for leaving it’s not abandonment.
5) Abandoning your property may affect your rights with regard to that property. In this paragraph, I’m talking about the physical act of going somewhere and leaving your property behind. For one thing, if you move out of your home, your spouse may be able to keep you out of the home under the domestic criminal trespass statute. N.C.G.S. 14-134.3 says that (note – this is a very simplified interpretation and may or may not apply to the specific facts of your situation) if you move out of the marital residence and then try to re-enter you may be guilty of a misdemeanor. Additionally, abandoning your property may (but doesn’t always) make it harder to get that property back in the separation agreement or equitable distribution suit.
6) Abandoning your children may make it more difficult to regain custody, and may even be grounds for termination of your parental rights. Although in a custody dispute between a parent and a third-party the parent generally has a protected status, the parent loses that status if he or she has abandoned the child. And under N.C.G.S. 7B-1111, abandonment is grounds for termination of parental rights.
Hopefully I’ve now cleared up some of the common misconceptions surrounding abandonment. As I’ve said before, the best thing to do is consult with an attorney BEFORE you move out so that you can plan accordingly.
Obviously, when a couple who is in the process of separating has minor children in the home, custody can become a major issue. Today’s post will discuss the law and theories behind an initial custody determination. As discussed in earlier posts, one way for the parties to resolve the custody issues is through an agreement- either as part of the Separation Agreement or by Consent Order. If the parties can reach an agreement, they are permitted to structure the custody/visitation schedule in whatever way will work best for them and for the children. While this frequently takes the form of primary custody with one parent and the other having visitation one day a week and every other weekend, that is by no means the only available option. In fact, the parties can alternate months, weeks or even days if they choose (although it’s debatable whether an arrangement with that much back and forth is really the best for the kids). The point is, keeping the custody out of court is often the best way to proceed, and thinking outside the “every other weekend” box can often help the parties reach an agreement that will work for everyone.
Of course, sometimes the parties can’t agree, and that’s when they turn to the court for help. As in most states, if the custody dispute is between two biological parents, both of whom are fit parents, the trial judge has fairly broad discretion in deciding which parent should have custody. The standard used to make the custody determination is found in N.C.G.S. 50-13.2, which says that custody shall be awarded to the person or organization “as will best promote the interest and welfare of the child.” This is frequently referred to as the “best interests” standard, since the issue for the court to determine is what is in the best interests of the minor child. N.C.G.S. 50-13.2 says that “no presumption shall apply” between the mother and father, so, in theory, both parents have an equal shot at custody. In determining the best interests, 50-13.2 basically allows the judge to consider any relevant information. This often includes things like the living arrangements of the parties, work schedules and ease of transition. Although attorneys and parents usually try to keep the children themselves from having to testify, a judge has discretion to interview the children in chambers and consider their wishes.
Previously, I discussed the issues that you need to consider when separating from your spouse. During the initial consultation, almost all new clients ask about the procedure for resolving those issues. Today’s post will attempt to explain the possible ways your case may be resolved.
Basically, you have two options: (1) you and your spouse can agree, or (2) you and your spouse can disagree.
For the issues on which you and your spouse agree, your attorney can draft settlement documents. These documents come in a couple of different formats, depending on what you are trying to accomplish. Often, the settlement document that the parties sign is a Separation and Property Settlement Agreement (sometimes referred so simply as a “Separation Agreement”). This document is a contract between the parties, and can include issues like alimony, postseparation support, equitable distribution, child custody and child support. A Separation and Property Settlement Agreement is typically not brought before a judge, so a judge usually doesn’t sign off on it (although, in some cases, the parties may choose to incorporate this document into a court decree for various reasons). Because the contract is not signed by the judge, it is not an order of the court. Two important differences between a contract and court order, in this instance, are the mechanisms for modification and enforcement. A different standard may apply to modification of the alimony and child support provisions in a Separation Agreement compared with a court order. Additionally, an order is enforceable by contempt of court; a contract is enforceable by bringing a lawsuit for breach of contract.
If the parties can agree on a resolution but would prefer to have a court order in place, this can be accomplished by filing a lawsuit on those issues and then having the parties and the judge sign a Consent Order. A Consent Order is an order of the court, and, thus, is enforceable by contempt.
If the parties can’t agree, then the solution is to file a lawsuit in court and litigate the issues. I always advise clients to reach an agreement, if possible, because litigation is much more time consuming and costly than settling outside of court. While a Separation Agreement can be drafted and signed in a week or two, lawsuits often take months, or even years, to resolve. It is not uncommon for two parties who have previously not been able to agree on anything to work out an agreement after the lawsuit has commenced. In this case, either a consent order is entered or a dismissal is filed and the parties sign a Separation Agreement.
It is also worth noting that any combination of the above methods is possible. For example, in some cases you might end up with a Separation and Property Settlement dividing up the marital property, a Consent Order for child support and alimony and a court order for child custody. Your attorney can advise which of these methods of resolution are best suited to your situation.