A Change in Military Pension Division: The End of Court-Adjudicated Indemnification – Howell v. Howell
2018 A Change in Military Pension Division: The End of Court-Adjudicated Indemnification – Howell v. Howell by Eliza Grace Lynch
We are excited to announce that Brentley Tanner is joining the Cheshire Parker Family Law section as a partner. He adds an expertise in military law and brings with him two fabulous associates, Ashley Oldham and Kaitlin Kober, and paralegals, Amber Caling and Eliza Lynch. We are thrilled to expand our practice statewide. As part of our growing practice, we have also opened a satellite office in Holly Springs.
Cheshire Parker Family Law is pleased to announce that Family Law attorney Kimberly Bryan has been certified by the American Academy of Trial Lawyers as a Certified Family Law Arbitrator. The AAML is the only organization in the country that trains matrimonial attorneys to arbitrate the unique issues that arise in family law. Kimberly can arbitrate limited issues along with complex matters needing several days.
Cheshire Parker Raleigh Family Law Attorneys named 2017 Top 100 North Carolina Super Lawyers and Rising Star
Family Law Attorneys John Parker and Kimberly Bryan were also named 2017 Top 100 North Carolina Super Lawyers.
CPSB is pleased to announce that Family Law Attorney Amy Britt has been named 2017 North Carolina Rising Star, six years in a row.
Congratulations to this years recipients!
We are honored that Raleigh Family Law Attorneys John Parker, and Kimberly Bryan, have again been named Super Lawyers by Superlawyers.com. We are proud that Kimberly Bryan has been named to the North Carolina Top 50 Women Super Lawyers two years in a row. In addition, Raleigh Family Law Attorney Amy Britt was named 2016 North Carolina Rising Star.
Super Lawyers explains the selection process as follows:
Super Lawyers is a rating service of outstanding lawyers from more than 70 practice areas who attain a high degree of peer recognition and professional achievement. The selection process includes independent research, peer nominations and peer evaluations.
Rising Stars explains the selection process as follows:
The selection process for the Rising Stars list is the same as the Super Lawyers selection process, with one exception: to be eligible for inclusion in Rising Stars, a candidate must be either 40 years old or younger or in practice for 10 years or less.
Congratulations to this years recipients. For more information regarding North Carolina’s laws and requirements, contact one of the Raleigh Family Law Attorneys at Cheshire Parker Schneider & Bryan for a consultation today.
The United States Supreme Court legalized same sex marriage in a landmark decision, and since then, many states have made changes to their existing marriage laws to accommodate this decision. With the legalization of marriage comes the legalization of same sex divorce, which has created challenges for lawmakers and attorneys nationwide as they determine how to best handle the split of a same sex couple.
North Carolina Criteria
In North Carolina, all divorcing couples are subject to the same laws. At least one person must have lived in North Carolina for at least six months, regardless of where the marriage license was issued. Each couple must go through one year of separation before they can file a petition for divorce, and at the time of separation, at least one person must have intended to make a permanent break in the marriage. However, you may resolve all other issues arising out of your marriage prior to your divorce.
It’s often difficult to determine who is the supporting spouse in today’s society, particularly where both partners hold jobs and contribute to the financial wellbeing of their household. If you are considered the supporting spouse, you may be required to pay alimony, so long as your ex-spouse is considered to be dependent and so long as there is the ability to pay alimony.
It is possible to resolve your separation without an alimony obligation if both parties agree in a Consent Order or a Separation Agreement. Additionally, some couples may have stipulations written into their prenuptial agreements that excuse each spouse from financial obligations to the other in case of a divorce.
Division of Property
In North Carolina, the marital dissolution laws allow the court to divide any property belonging to a divorcing couple if the couple cannot reach an agreement on their own. Although many people believe that a division of marital assets and debts is performed as an equal split between two spouses, this is not always the case, but it is the starting presumption.
Also, some property may have been inherited or given to only one spouse by a third party or some property may have mixed characteristics, as can often be the case with retirement accounts if they have been contributed to before and/or after the marriage. Debt may not be marital if it was not incurred for a marital purpose. Additionally, it may not be feasible, for economic reasons, legal reasons or business reasons, to divide certain items of property, such as a family business. In those cases, it may be more proper to offset the value of the business with other assets.
How is Custody Decided?
There is no presumption in North Carolina as to who shall be the primary custodian of a child. Instead, North Carolina uses a best interest determination between two legal parents. As a same –sex couple the landscape is still a bit complicated. If both of your names are on the child’s birth certificate, the same legal standard will apply in your custodial determination.
If the child is biologically your partner’s child, you will need to consider a step-parent adoption to be on the same legal footing as the biological parent. If you do not have your name on the birth certificate, there are precedent cases in North Carolina that may apply to your facts and allow you to seek custody/visitation based on the best interest of the child. This area of law can be very complicated, so please seek legal counsel prior to separating.
Call An Attorney
If you are considering divorcing your spouse, you need the help of a divorce attorney. At Cheshire, Parker, Schneider, and Bryan, our Raleigh divorce lawyers represent divorcing same-sex couples in North Carolina.
Domestic violence is much more than physical violence. Domestic violence is riddled with stereotypes.
When we think about domestic violence, we often focus on the violence which may consist of a husband lashing out at his wife, a girlfriend throwing a blender at her boyfriend, one spouse hitting the other with a baseball bat and other types of physical violence. These examples are more in line with stereotypical abusers.
Domestic violence is also sexual coercion; financial control; verbal abuse; isolation from friends, family, and co-workers; denigration; humiliation; controlling decisions; stifling independence; monitoring whereabouts and more. These are actions that are all about power and control.
Many Perpetrators of Domestic Violence Never Use Physical Violence
A string of controlling and domineering actions depletes a partner’s ability to develop individually; to improve education, financial independence, professional advancement or have much of a friend or support network. The abuser twists the partner’s mind, plays games and is confusing. The abuser breaks promises, switches tactics, makes excuses and blames the partner. One by one, a partner’s options for personal growth and independence are taken away or minimized – never once by using physical force.
There is public outrage about physical violence. Non-physical power and over-controlling abuse are invisible. There is less public understanding about non-physical domestic violence. This lack of understanding means the victim cannot define what is happening.
People who experience a systematic pattern of psychological abuse and control suffer from psychological wounds that can be longer-lasting than the wounds from physical violence. Commonly, where the dynamic of the relationship is about power and control without violence, there is no honeymoon period of remorse and renewed promises. Instead, there is a consistent effort at total domination.
Domestic Violence Protective Orders
North Carolina law defines civil domestic violence as any instance where a person with whom you have had a personal relationship takes any of the below actions against you or a minor child:
- Causes or attempts to cause bodily injury, or
- Places you or your family members in fear of imminent serious bodily harm, or
- Continues to harass you to the point of substantial emotional distress, or
- Commits rape or sexual offenses.
A victim may obtain a Domestic Violence Protective Order against a partner who commits any act of domestic violence – physical or non-physical. A Domestic Violence Protective Order is a CIVIL remedy, although there may be related criminal penalties that go hand-in-hand with domestic violence.
“Harassment” for the purpose of obtaining a Protective Order, means: “knowing conduct, including written or printed communication or transmission, telephone, cellular, or other wireless telephonic communication, facsimile transmission, pager messages or transmissions, answering machine or voice mail messages or transmissions, and electronic mail messages or other computerized or electronic transmissions directed at a specific person that torments, terrorizes, or terrifies that person and that serves no legitimate purpose such that a reasonable person in the victim’s circumstances would feel harassed; and that the victim suffer significant mental suffering or distress that may, but does not necessarily, require medical or other professional treatment or counseling.”
In our age of electronics and technology, a perpetrator can commit acts of domestic violation by cyber harassment. A partner can be monitored electronically; harassed online through social media or via email or other means. North Carolina has additional remedies on the criminal law side for cyberstalking and revenge porn.
Protecting Against All Violence
Acts of non-physical abuse are just as dangerous and damaging as physical violence — sometimes even more so. Victims may feel like they have no options if they’re suffering from non-physical domestic violence, but they need protection all the same.
For more information on stalking, cyberstalking and family law, contact the Raleigh domestic violence attorneys at Cheshire, Parker, Schneider, and Bryan today. We represent anyone who has been a victim of domestic violence (physical and otherwise) and needs help getting justice. Call us today for a consultation on your case.
A Separation Agreement is a contract between spouses. It is enforceable under contract principles of law. It differs from a Court Order because a Separation Agreement is modifiable only if the parties mutually agree, whereas a court can modify an Order over the objection of a party. We will advise you whether your interest is best served by the execution of a Separation Agreement rather than a Court Order, or whether it is best for you to have both.
Separation Agreements can cover a multitude of topics, like:
- Physically separating from each other
- Distribution of real estate
- Sale of real estate with detailed terms
- Distribution and division of business interests
- Distribution of Financial Accounts
- Distribution of Retirement and Investment Accounts
- Payment of Debt
- Distribution of personal property
- Sale of assets
- Tax Strategies
- Life Insurance
- Child Custody and Child Support
- College and post-high school support
- Pets and Pet Support
- Intellectual Property
- Social Media accounts, images, cloud storage
- Music and video libraries
- Support Trusts, Life Insurance Trusts
- Property Division settlements and payments
- Confidentiality terms
A Separation Agreement, more completely known as a “Separation Agreement and Property Settlement Agreement,” is an alternative to litigation. However, litigation is often initiated and thereafter settled with the execution of a Separation Agreement.
The negotiation of a Separation Agreement is not easy. It may be time consuming and complex, depending on the nature and extent of marital and separate assets. Most of the time, neither party succeeds in getting every single term he or she wants. Each side must compromise, and compromise is hard. But first, you need to be educated about what North Carolina law allows and what your options are so you can make informed choices.
For more information on separation agreements in North Carolina, contact a Raleigh divorce mediation attorney at Cheshire, Parker, Schneider & Bryan today.
Even the use of the word “alienation” sparks controversy amongst parents, lawyers, mental health professionals and child custody “experts.” The phrase “parental alienation” is used very broadly to define an estranged relationship between a child and one parent. After a separation, there are often multiple allegations and counter-allegations that may include accusations that one parent is intentionally poisoning a child against the other parent.
It is uncommon that there is just one dynamic contributing to a child’s rejection of a parent. There are complex, multi-factored, interactions that cause children to reject a parent, including abuse, poor parenting, family conflict and domestic violence, among others.
Get Legal Help Early
When there is evidence of a child resisting visitation, it is worth a pound of legal and mental health intervention before these problems become deep-rooted. Parent coordination is almost always a necessary tool for managing cases where there is evidence of alienation because the Family Court is not able to intensely manage the needs of the family. Court intervention is necessary — even critical — because coercive court authority is needed to support compliance with treatment and custody orders.
The favored parent and child are rarely motivated to comply with court orders that support reunification or access to the other parent, so a court order enforced by contempt of court or sanctions is often necessary for progress to occur.
Distinguishing Conduct From Patterns of Behavior
After a separation, most parents will make a few angry and inappropriate statements, and most children will find a way to ignore these occasional outbursts. It is important to examine parental behavior to evaluate whether these angry and inappropriate statements are situationally-isolated incidents or whether they are a pattern of ongoing behavior. Alienating behaviors can range from mild belittling and hostile comments about the other parent to intense and active campaigns to paint the other parent as evil.
When the idea of separation and divorce is new to a parent, a parent may make some disparaging remarks to a child about the other parent. Although this is not acceptable behavior, it is understandable when the wounds are fresh and the pain is raw.
When called out on the offending statements, if the parent immediately takes corrective action (and means it), these are most likely isolated acts that will not cause a child or the parent-child relationship permanent harm. On the other hand, when a parent vindictively continues a pattern of persistent attacks, even subtle ones, legal and therapeutic steps must be taken.
Overt and malicious behaviors are obvious to most everyone. Some behaviors, while subtle, are just as damaging and traumatic to a child and to parent-child relationships as obvious actions.
Consider this: Let’s say we have a dad who expresses support about the mother, along with confusion and dismay about the child’s rejection of the mother. However, dad “accidently” leaves court papers out in the open and anxiously says goodbye with frantic hugs and kisses, saying, “Don’t worry baby, I’m sure you’ll be ok with mommy, but text me as soon as you get scared.” Dad might also make fabulous plans during times when the child is supposed to leave for his or her custody time with mommy. Such actions could be viewed as a pattern of behavior that will likely contribute to damaging the parent-child relationship.
It May Not Be Just One Parent
In most cases, it is not just one parent that is contributing to the estrangement between the child and a parent. Actions taken by each parent have an impact. Take the dad’s actions outlined above, and add to the mix how the child may feel when mom says, “You’re acting just like your dad,” and when mom screams “get out, get out, get out – this is my time. You’re ruining my life,” when dad walks into the room.
Legal and mental health interventions must occur where there is alienation or estrangement. A detailed, clear and specific custody order is critical. An experienced mental health professional is essential and a Parent Coordinator is necessary.
For more information on this complex subject, contact a Raleigh child custody attorney at Cheshire Parker Schneider & Bryan.
Negotiating a premarital agreement can be very touchy. Typically, the process begins with one spouse-to-be creating a draft of a document that protects that party, seemingly to the exclusion of the other. The “moneyed spouse” proposes initially that very little (or none) of the money or assets are to be shared with the other spouse except under the control of the moneyed spouse. And, there is no guarantee or minimum amount of money or assets paid to the less-moneyed spouse, either at separation or death (even if the marriage is intact), and there are iron-clad provisions dictating who gets what if the parties separate. You can imagine the ire of the other spouse when this kind of one-sided draft is first read.
Negotiating a Premarital Agreement in the “traditional” way – spouses-to-be standing with lawyers taking adversarial positions like the marriage is a business transaction – can create destructive emotions that are carried over into the fledgling marital relationship. The transactional business deal approach can be bruising and destructive, and can lead to an inadequate document. The quality and terms of the Premarital Agreement can be poor since it was not tailored to the real needs and aims of the future spouses. There is a better way to negotiate Premarital Agreements than the “traditional” type of negotiation.
Premarital Agreement Mediation!
ADVANTAGES OF MEDIATING THE PREMARITAL AGREEMENT
Mediation is an excellent way for people to discuss tricky issues that provoke hot emotions. The emotions will still provoke hard conversation, but the mediation setting can lower the heat. The first difference is that rather than begin with a document that one side has become attached to, a Premarital Mediation can begin with balance since no one has become cemented in his or her proposals. Prior to Premarital Mediation, each spouse-to-be is offered a checklist of discussion items. The idea of the Premarital Checklist is for the couple to consider his and her individual approach to the 4 pillars: family, finances, faith, and fun. Ideally, the couple will discuss approaches and goals prior to mediation. The Premarital Checklist includes issues like: money and asset accumulation and management; who makes money decisions; who handles the checkbook; savings; money styles; long-term goals; credit and debt; religion; employment; children; relocation; extended family; post-separation spousal support; business ownership and participation; marital fault; and more.
In Premarital Agreement mediation, the couple can formulate the terms of the Agreement face-to-face, with the assistance of the mediator, lawyers, and the Premarital Agreement Checklist of each party in the background. Rather than trade term sheets back and forth, the spouses are communicating and collaborating toward a mutual understanding and respect while coming to terms of the Agreement. This give-and-take at the outset of the marriage is an achievement that starts the marriage off successfully.
BALANCE, INFORMED CHOICES, ENFORCEABLE TERMS
A Premarital Agreement must not be coercive. Each party must freely and voluntarily agree to the terms. A Premarital Agreement must be enforceable. The danger in a “traditional” Premarital Agreement negotiation is that one side is perceived to be a bully, arm-twisting for favorable terms under the threat of backing out of the pending nuptials. If the agreement is not coercive, the parties will likely stand behind it if there is an initiating event that causes it to come into play. The Premarital Agreement mediation process creates more balanced terms, informed choices, and an enforceable document.
In mediation, the discussion can be rational and productive. Ideas about to how to fairly and accurately balance and accommodate the parties’ concerns can be processed. The parties may also learn about ideas and solutions they would not have been aware of without the collaborative input of the mediator and lawyers. Having a spouse-to-be bring along an independent lawyer is not adversarial – in the context of the mediation, the goal of all participants is to craft an Agreement that is reflective of the needs, desires, and concerns of each spouse-to-be.
There is no better way to come to a true meeting of the minds that takes into account the interests and goals of each spouse-to-be than to do it face-to-face in mediation sessions with a mediator.
At Cheshire Parker Schneider & Bryan, our Raleigh Family Law attorneys represent anyone who is about to be married and who is considering entering into a Premarital Agreement. For more information regarding premarital agreement mediation, contact a CPSB lawyer today.