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Is a 529 College Savings Plan a Gift to a Child or Marital Property?

Posted by on Aug 9, 2018 in Blog, Child support, Equitable Distribution of Marital Property and Debt | 0 comments

Is a 529 College Savings Plan a Gift to a Child or Marital Property?

Is a 529 College Savings Plan a Gift to a Child or Marital Property? By Amy A. Edwards Yesterday, the NC Court of Appeals addressed this question in Berens v. Berens. This was a case of first impression, meaning our courts have not yet made any decision on this subject. The Court defines 529 plan as “investment programs permit parents to set aside money for their children’s college expenses under tax-favorable conditions.” In the Berens case, the parents funded several 529 plans for their children while they were married and before they separated. The First Trial: Marital Property The lower court said the funds in the plans were marital property, and then awarded them to Mom as marital assets. She disagreed with that, and appealed the case, arguing that the money invested in the plans were gifts to each child, not marital property. And therefore, the court had no jurisdiction over the plans because they were not marital property. The Court of Appeals disagreed with her. The Appeal: Marital Property In this particular case, the Court of Appeals said the funds were not gifts to the children because they were all in Mom’s name alone. Besides the intent to give the gift to someone, a gift is only a gift if it is actually given to someone. Here, Mom failed to give a gift because no child was a named owner. Had the plans been gifts, each child would’ve had “all right, title, and control over the property.” Just because a 529 plan gives an owner a special tax benefit doesn’t mean it changes ownership. Although each child was a beneficiary, the plans were still owned by Mom. Therefore, she had the ability to spend the funds in any way see saw fit.  Amy A. Edwards is a family law attorney in Greenville, NC, certified by the NC State Bar Board of Legal Specialization as a Family Law Specialist, and is licensed only in NC. Laws change. This article is current as of 2018. www.AmyEdwardsFamilyLaw.com ©...

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Clients and Attorneys Going in Different Directions: Marital Fault or Bad Behavior by the Other Parent

Posted by on Jul 28, 2018 in Blog, Family Law, Working with your lawyer | 0 comments

Clients and Attorneys Going in Different Directions: Marital Fault or Bad Behavior by the Other Parent

Clients and Attorneys Going in Different Directions:  Marital Fault or Bad Behavior by the Other Parent In the Beginning . . .  By the time someone talks with an attorney about a divorce or a custody case, it is safe to say that it isn’t because something great just happened. Most people are struggling to make sense of what has just happened to them, or what finally became the last straw. Clients are devastated, shocked, angry, traumatized and anxious to vent about how the other person has betrayed and hurt them. Each case is unique but this article is a general response to a common question that clients ask me: Why are we worrying about this [insert something that’s tedious and dull] when I can prove my ex did [insert something that’s awful and life-changing]. What’s Your Attorney Doing? Meanwhile, after you have bared your soul to the attorney and handed a check or credit card to the receptionist, the attorney and his or her staff members are doing lots of busy-work.  All they appear to be doing is wasting time, filing court paperwork, gathering tons of financial records, drafting financial affidavits (budgets for court), listing details of property and debts, and perhaps doing discovery and then mediation. Clients quickly become disappointed and frustrated once they discover that fault and bad behavior won’t usually be addressed in depth until after all of that is completed, and then a trial. Unfortunately, it can easily take a year after you start the court process for a judge to make the final ruling on your case.   What Are Your Attorney’s Priorities? It might seem like your attorney isn’t really listening to what’s important to you, or that his or her goals appear to be at odds with yours. This legal process is backwards in the sense that clients have to deal with serious emotional turmoil and upheaval at the beginning of a case, but your attorney must work with an eye towards the end of a case. This means that the attorney might have to set aside what’s right and wrong at the beginning of a case to start building a foundation for the case before reaching those matters. One of the hardest lessons I learned upon my arrival at law school was that courts don’t dole out justice. In fact, they usually don’t focus on justice. Instead, courts apply the law to the facts of each case. The law must be your attorney’s priority. Attorneys have a duty and obligation to take a step back and look at the situation objectively, the way a judge would, to tailor your case to what a (neutral) judge expects to hear from us about key issues. Approaching your case based on our feelings would be dangerous for your attorney. Instead, we try to analyze the situation while staying cool, calm and collected. In fact, a good attorney might be saving you time and money by negotiating a settlement on who keeps what property/debts, or what the children’s visitation schedule will be instead of beginning with fault and who is right or wrong. What Are Your Priorities? I’ve had clients who want to be vindicated by showing that the other person has been unfaithful, wasted money, was abusive, or done any number of other bad behaviors. Expressing their feelings in a trial can be a cathartic and liberating experience. Or, if...

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My Ex Is Using the Attorney That I’m Paying For!

Posted by on Jul 19, 2018 in Blog, Relationships, Working with your lawyer | 0 comments

My Ex Is Using the Attorney That I’m Paying For!

My Ex Is Using the Attorney That I’m Paying For! By Amy A. Edwards The Attorney Client Relationship Clients can be resentful that their attorney is wasting time dealing with the pro se person. In most family law cases, each person has an attorney. When the other person is pro se, Latin for representing himself or herself, lawyers aren’t working for the pro se person and charging you for it as clients sometimes think. That is prohibited. An attorney may represent only one person in a family law case, such as a divorce or child custody case. Failure to do that is usually a conflict of interest. That means what is good for one person might be a bad thing for the other person. For example, if one spouse gets alimony that’s a good thing for him or her, but it is might be a bad thing for the other spouse. The lawyer has to choose one person or the other as a client. What’s Different? If your ex had an attorney, your attorney would have to talk with the other about settlement, discovery (documents, etc.), trial matters, and logistics of court events such as depositions. In other words, your attorney would still be taking time to talk with the other attorney. It doesn’t always take more time than it would to negotiate with an attorney. In fact, some people without attorneys are anxious to get down to business instead of posturing the way other attorneys will because they want to avoid court. The Law and Equality The law requires everyone to be treated in the same way, regardless of whether they have an attorney or not. The same deadlines, rules, laws and other requirements apply to both sides. In the eyes of the law, people shouldn’t be penalized if they cannot afford an attorney. But the judge is still bound by the law. Judges have to walk a fine line in these cases. Attorneys also have to be very careful when communicating with a pro se person. We certainly can’t give them legal advice but sometimes we do explain the reasons why the offer we are making on behalf of our client is a good one. Depending on the circumstances, the attorney will tell the pro se person that he or should talk with an attorney. Same Rules as Everyone Else But . . . Attorneys have specific things they need to prove in court, based on what the law requires in each situation. But in court, judges sometimes give pro se people a little leeway when they testify and present their side of the case because if they were held to a strict standard they probably wouldn’t be able to say much at all. More often than not, the pro se person usually just wants the judge to hear what they want and why they want it. In a democracy, it is important for all citizens to have the right to their day in court. It’s especially important for parents who are in child custody cases to be heard because the judge must award child custody to one or both parents based on what the judge believes is in the child’s best interest, regardless of whether the parent is represented by an attorney. Amy A. Edwards is a...

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What Do All Those Child Custody Labels Really Mean?

Posted by on Jul 9, 2018 in Blog, Child custody, Court, Family Law | 0 comments

What Do All Those Child Custody Labels  Really Mean?

What Do All Those Child Custody Labels Really Mean? (Part 1 of 2) This article focuses on legal custody. Parents will fight tooth and nail about what kind of custody each of them should have. They are extremely concerned about the term custody. There are many parenting labels including visitation, joint custody, sole custody, physical custody and legal custody. Our state statute doesn’t help much. In fact, it probably creates more confusion. NC Gen. Stat. §50-13.1(a) states: Unless a contrary intent is clear, the word “custody” shall be deemed to include custody or visitation or both.” However, our case law and the NC Child Support Guidelines do give us more details about those labels. I’ve tried to avoid legalese, but some of it is inevitable. Our Changing Values  Unlike some states, our state law doesn’t start by assuming that any particular type of custody will exist. But a few years ago, it came just shy of it when the state policy was written to promote “child-centered parenting . . . and encourage . . . court practices that reflect the active and ongoing participation of both parents in the child’s life and contact with both parents when such is in the child’s best interest…” NC Gen. Stat. §50-13.01. This was significant because it wasn’t too many years ago that courts almost automatically gave moms custody of young children. The now debunked law of traditional custody, called the Tender Years Doctrine, assumed young children of tender years should be with their mothers if at all possible. Now, if either parent requests joint custody, the court is legally obligated to consider it. NC Gen. Stat. §50-13.2(a). Legal Custody (Parenting Decisions) Legal custody is decision-making custody, the right to make significant long-term decisions that impact a child’s life and welfare, such as a child’s education, health, medical care, discipline, and religious training, to name a few. Contrast that with physical custody, the day-to-day decision-making such as what bed-time is best or how long a child may spend on social media on a school night. There are three types of legal custody. Joint Legal Custody The trend these days is to award joint legal custody to parents, meaning that both parents equally share the decision-making. Ironically, when parents share joint custody, neither parent can veto the other, so neither parent really has any more rights to make a decision than the other. But, the system of checks and balances provides some incentive for decent behavior. If one parent acts badly or makes poor decisions, he or she may have to account for it on the witness stand at some future date if the other parent files a motion for the court to intervene and have a judge decide what must be done about the disagreement.  Sole Legal Custody On occasion, a judge will award sole legal custody to one parent. If the dispute is about which school a child should attend, for example, the parent with sole legal custody makes the final decision. However, judges usually expect the parent with sole legal custody to discuss the controversy with the other parent. But if they still can’t agree, he or she makes the decision. Until a child reaches the age of 18, either parent has the right to file motions asking the court to address any serious dispute, which usually is done by a motion to modify the custody order. “Split” Joint Legal Custody Although it is...

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21 Divorce Experts All Share Their #1 Tip

Posted by on Jun 23, 2018 in Blog, Family Law | 0 comments

21 Divorce Experts All Share Their #1 Tip

    21 Divorce Experts All Share Their #1 Tip We’re excited to share this article, in which Ms. Edwards is featured as #16 ...

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Contempt of Court in North Carolina

Posted by on Jun 8, 2018 in Blog, Court, Family Law | 0 comments

Contempt of Court in North Carolina

Contempt of Court in North Carolina When someone violates a court order, the other person can file a motion asking the court to hold him or her in contempt. In family law, judges enter orders for child custody and support, alimony and marital property division, among others. Our statutes define the way a judge can require people to obey court orders, up to and including incarceration. There are two kinds of contempt, civil or criminal. Civil Contempt After the judge determines the order is valid and still in effect, a judge must be certain the “purpose of the order may still be served by compliance with the order.” NC Gen. Stat. §5-21(a). To enforce an order by civil contempt, someone must willfully fail to comply with the order. He or she must have the ability to comply or take reasonable measures that would enable the person to comply. For instance, if you are required to pay child support by court order but you are in a bad vehicle accident and unable to work some period of time because you were in the hospital for a month, you might be able to prove you were unable to comply with the order. That doesn’t mean the judge will cancel or reduce the child support obligation. It just means that the order is not being enforced by holding you in contempt and incarcerating you. There are other ways people can enforce orders. Incarceration For Civil Contempt The purpose of civil contempt is not to punish someone as is the case with criminal contempt. Instead, the purpose of incarceration is to force the person to comply with the order. If a parent owes back child support, he or she is taken into the custody of the sheriff until the payments are made. The judge must order certain release conditions called “purge conditions” because doing those things will allow the person to purge or rid himself or herself of contempt. It is said that in civil contempt, the person incarcerated holds the keys to the jail because all he or she has to do is comply with the order. The person refusing to comply with an order of the court may be initially incarcerated up to 90 days. If there is no compliance, the judge will have another hearing at the end of the 90 days. The maximum time of incarceration for civil contempt is one year. NC Gen. Stat. §5A-21(b2). Because the violator faces incarceration, the court will usually offer to appoint an a9orney if the person can’t afford one. Criminal Contempt Instead of holding the keys to the jail, the purpose of criminal contempt is punishment. This is what people usually think of when contempt comes to mind. NC statutes list plenty examples of bad behavior, all of which must be willful and usually in the courtroom. These include interrupting court proceedings, disrespecting the judge, disobedience or interference with a court’s order or directive, refusing to answer a question on the witness stand or refusing to be sworn in (of affirmed) to testify. Amy A. Edwards is a family law attorney in Greenville, NC, certified by the NC State Bar Board of Legal Specialization as a Family Law Specialist, and is licensed only in NC. Laws change. This article is current as...

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The NC SAVAN Program: Statewide Automated Victim Assistance and Notification

Posted by on May 28, 2018 in Blog, Domestic Violence, Family Law, Resources | 0 comments

The NC SAVAN Program: Statewide Automated Victim Assistance and Notification

The NC SAVAN Program: Statewide Automated Victim Assistance and Notification * Taken directly from the web site of the NC Department of Public Safety:  www.ncdps.gov/dps-services/victim-services/statewide-automated-victim-assistance-and-notification-savan  NC SAVAN, is a criminal justice information-sharing system that supports automated victim notification. NC SAVAN operates a 24-hour toll-free automated offender information and notification service. Individuals may call the toll-free number, 877-NC SAVAN, (877) 627-2826, to learn about an offender’s status, to register for offender notification or to learn about victim assistance resources in their area. Notifications are provided in English and Spanish and translation services are available in more than 100 languages relative to services provided by SAVAN. Once registered, users may receive offender notifications through automated telephone and e-mail notifications, or by downloading telephone applications. This service is meant to augment victim services offered by key...

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What Do Judges Consider in Alimony Cases?

Posted by on May 20, 2018 in Alimony, Blog, Court, divorce, Family Law, Marriage | 0 comments

What Do Judges Consider in Alimony Cases?

What Do Judges Consider in Alimony Cases? By Amy A. Edwards The factors guide judges in reminding them of the most important things. Either spouse may seek alimony if he or she earns less than the other in North Carolina, although there’s no specific dollar amount that determines by how much less. While we have guidelines in child support cases that compute an amount based on incomes and certain child-related expenses, we don’t have anything of that nature for alimony. Each party prepares a budget as a trial exhibit, which includes income and living expenses. If the judge awards it, the amount of alimony and how long it will be paid is discretionary. Alimony Factors: Incomes/Benefits NC judges must consider a list of factors in alimony cases. The first factor to consider is how much income each spouse has, and sometimes what a spouse has the capacity to earn. Also considered is unearned income, which is not shown on a W-2 statement, such as dividends, rents, retirement payments, disability, social security payments and employment benefits such as medical insurance (and/or dental and vision insurance), retirement benefits, and marital property and debts. Alimony Factors: Each Person’s Situation The court considers each spouse’s individual circumstance, education, age, physical and mental abilities, and emotional conditions. For example, a 25-year-old spouse and a 60-year-old spouse will be treated differently based on medical conditions and the ability to work. Their needs and expectations, such as the anticipated date of retirement or going back to school, also vary. Marital misconduct of either spouse may also be considered. Alimony Factors: History of the Marriage The court also looks at the standard of living that the parties established during the marriage. How long the parties were married and the contribution by one spouse to the education, training, or increased earning power of the other spouse are other factors. One party might have kept the home-fires burning for the last ten years, caring for the children while the other devoted his or her energy to obtaining a degree or advance in a profession, improving the family income. In fact, the statute also requires the judge to consider the “extent to which the earning power, expenses, or financial obligations of a spouse will be affected by reason of serving as the custodian of a minor child.” Alimony Factors: Miscellaneous The court looks at family obligations, such as paying child support for children with another parent, or alimony to a former spouse. Courts usually have the trial for equitable distribution (the division of marital property and debt) before the alimony trial. This is because the judge will look at who kept which assets, and who is responsible for various marital bills, which is important when determining each party’s reasonable expenses. If someone brought assets into the marriage, the court has the right to consider. The federal, state, and local tax ramifications of the alimony award are legitimate factors for the judge to weigh in making an alimony award. The factors are meant to guide judges in reminding them of the most important things to think about when deciding what to order in alimony cases. The flexibility is there but just in case, the statute also tells judges that they are free to consider “Any other factor relating to the economic...

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Domestic Violence Protective Orders in North Carolina

Posted by on May 6, 2018 in Blog, Domestic Violence | 0 comments

Domestic Violence  Protective Orders in North Carolina

Domestic Violence Protective Orders in North Carolina According to the NC Coalition Against Violence, there were 79 domestic violence homicides in NC in 2017. “On average, nearly 20 people per minute are physically abused by an intimate partner in the United States. During one year, this equates to more than 10 million people.”  People with certain personal relationships may seek domestic violence protective orders (DVPOs). These include household members, parents of a child in common, spouses and former spouses, and others. DVPOs give law enforcement the ability to arrest a defendant if they have probable cause to believe he or she violated the order. Intentionally making a false statement to law enforcement that there is a DVPO when there isn’t one is a crime.  NC Gen. Stat. §50B-4.2. What Counts as Domestic Violence?    North Carolina law specifies three types of domestic violence which are summarized here. One is intentionally causing (or attempting to cause) bodily injury. Another is committing rape and/or sexual assault. The third type of domestic violence is placing a person in fear of imminent serious bodily injury, or continued harassment. As used here, harassment means it reaches a level so bad that it inflicts substantial emotional distress. This definition applies not only the victim, but also the victim’s family or household in some circumstances. Criminal statutes detail the harassment as conduct that is “directed at a specific person that torments, terrorizes, or terrifies that person and that serves no legitimate purpose.” NC Gen. Stat. §14-277.3A.  What is a DVPO? A domestic violence protective order is awarded by a judge to protect a victim by prohibiting the defendant from assaulting, threatening, abusing, following, harassing (by telephone, visiting the home or workplace, or other means), or interfering with the victim and/or children who live with the victim. DVPOs can also order a defendant to stay away from the victim’s residence, school, place of employment and anywhere else that would be applicable. These are civil cases, not criminal in nature although the violation of a DVPO is a crime. As a separate matter, a defendant might also face criminal charges for assault on a female, battery, interference with a 911 call, child abuse or other charges.  Are There Other Remedies? DVPOs can also require the defendant to attend and complete an abuser treatment program or prohibit him or her from purchasing a firearm for a period of time. The court has the authority to award temporary possession of personal property, including a family pet. An emergency DVPO might be awarded before the defendant has the opportunity to appear in court.  If a child is exposed to a substantial risk of physical or emotional injury, or sexual abuse, the court might award emergency temporary child custody. The court may require the defendant stay away from the child, to return the child to the other parent, or prohibit him or her from removing a child from someone’s care. The office of the NC Attorney General offers an Address Confidentiality Program, which is a mail forwarding program that adds another layer to the protections of domestic violence victims.  Help and Resources: Information on Available Resources in North Carolina Personalized Domestic Violence Safety Plan (checklist of things to do when facing violence in a relationship) from NC Dept of Social Services. Real Crisis Intervention in Greenville offers counseling, advocacy, information and referrals.  Amy A. Edwards is a family law attorney in Greenville, NC, certified by the NC State Bar Board of Legal Specialization...

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Digital Privacy: Does Your Separation Agreement Have It?

Posted by on Apr 11, 2018 in Blog, divorce, Estate Planning and Asset Protection, Family Law, Privacy | 0 comments

Digital Privacy: Does Your Separation Agreement Have It?

Digital Privacy: Does Your Separation Agreement Have It? When negotiating an agreement about your divorce, you think of dividing assets like the cars and the house. But people don’t always think about their digital property and privacy. There probably aren’t lots of “boiler plate” paragraphs in separation agreements but you should ask your attorney to address it. What is Digital Privacy? My definition of digital privacy in divorce cases includes your ability to exercise sole exclusive use and ownership of your personal data, be it by key keypad, smart phone or computer. While there are legitimate and lawful purposes for using each other’s personal data, such as applying for social security benefits or filing tax returns, there are many other uses your ex might want to make of your data, even if it is just being nosey. Protected Information A good separation agreement should define what type of information should be protected. Your ex should be required to maintain the confidentiality of your personal data, such as financial records, legal affairs, medical records (including any substance abuse or mental health records), employment, records, and military or school records. Social security numbers, taxpayer identification numbers, passport numbers, date of birth, mother’s maiden name, or any other similar identifying information should be held in confidence. Require other identifying information like your online account numbers and passwords, ATM transactions, your credit report, personal identification numbers (PINs), and info for online shopping web sites such as Pay Pal or Amazon to remain confidential. Posting or other sharing embarrassing and/or sexually explicit or sexually suggestive material should likewise be prohibited. Access and Security of Digital Data  By the time you’ve shared a child or a marriage, you can probably guess each other’s passwords or PIN numbers. Your first plan of attack is to change your passwords and other barriers to access. Get a copy of your credit report and close accounts you no longer use. In the agreement, list examples of what is considered a violation. The most common examples are accessing the other party’s Facebook or other social media account, accessing his or her phone, text or voice mail messages, and e-mail messages. Public Embarrassment and Humiliation  The law related to social media and what can or cannot be used or posted is constantly evolving, as is the technology we use. It can be difficult to determine what is, or is not, acceptable because these issues implicate Constitutional freedom of speech and the definition of what is a crime. There are thousands of situations that could arise. Still, that doesn’t mean you should not at least try to include types of protections in your separation agreement.  An agreement can’t cover every instance of mean-spirited posts on social media. Draw the line at posts about sexual activities and images exposing intimate body parts. Include electronic or written communication, photographs, video, texting, tapes, audio and other recordings.  Use of Personal Data Understanding that the terms of an agreement might not always be enforceable in light of a balance between freedom of expression and bad or criminal acts, it is still wise to make the intent of your agreement clear. Specify that neither spouse can use (or enable a third-party to use) the other person’s data to commit fraud or a criminal act or to disparage, harm, negatively affect the other party’s public image, reputation, or business, school, or career prospects, coerce, harass, intimidate, demean, humiliate, or cause financial loss to, the other party. Remedies If your ex violates...

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