Alienation of Affection

North Carolina law provides a remedy for a person who feels another has interfered with his or her marriage, alienating the affection of his or her spouse. Recently, John Edwards' mistress was interviewed by Oprah, candidly admitting that she had entered into a sexual relationship with him knowing that he was married.

The mistress contends that the Edwards' marriage was over prior to her meeting John Edwards. Elizabeth Edwards has a potential cause of action for Alienation of Affections against the mistress. Should Elizabeth Edwards elect to sue her, Mrs. Edwards would have to show that (1) the Edwards had an intact relationship (2) which was undermined and destroyed by the actions of an interloper in order to win.

I was shocked to see that the mistress was so blatantly unapologetic about her role in the Edwards' separation. I was also shocked to see that an attorney had not advised her to keep her own counsel in this regard.

College Costs for Children of Divorce

In both North Carolina and Virginia, Courts cannot order that a parent pay for a child's college education unless that parent had agreed to do so in a separation agreement or court order. Once a parent has obligated himself or herself to pay for college expenses, however, a court may then enforce that agreement.

Child support ends once a child reaches eighteen. A child still enrolled in high school may continue to be supported until age nineteen (Virginia) or twenty (North Carolina). Each state also has provisions for child support for a disabled child who is incapable of self-support.

Following Court Orders

Frequently in my practice, I must deal with helping a client enforce a Court Order. Visitation was denied, payments had lapsed, or a new significant other spent the night when the children were over, for example. Clients call to ask for help in making the other side play by the rules.

Violating an order may place you in contempt of court, if your violation was willful (on purpose). Courts have the ability to enforce orders by subjecting violators to fines, jail, paying the other party's attorneys fees, or by offering a purge clause which requires compliance with the order in order to avoid such sanctions.

The severity of the violation, and the justification offered for the violation, have a major impact on the severity of a sanction. A child support payment missed after job loss following catastrophic illness or injury will usually bring less punishment than the same support payment missed after a luxurious vacation. Repeated violations will usually bring stiffer sanctions each successive time.

When does a Separation Begin?

In North Carolina, parties are separated when they begin to live in separate residences and one (or both) of the parties develops the intention to live separately from the other permanently. In Virginia, the parties can separate in the same residence, but it could be difficult to prove if a spouse denied the separation.

You do not need a separation agreement to be separated. It is a question of fact which must be proven if you want it to be decided in your favor, should your spouse disagree about the separation date. (Some spouses disagree about the date not out of love and a desire to preserve the marriage, but rather because a divorce allows the court to divide assets and award alimony or spousal support.)

Your separation begins on the date you start to live separate and apart. While you can state the date in a separation agreement, the agreement does not necessarily start the separation.

In North Carolina, parties must be separated for a year prior to filing for divorce. In Virginia, parties must be separated for a year or, if there is a signed agreement and no minor children of the parties, for six months prior to filing.

Grounds for Divorce

Grounds for an absolute divorce, one which severs the marital relationship between husband and wife, must exist on the day the divorce is filed.

In North Carolina, there is only one ground for an absolute divorce. That is that the parties have been separated for one year, without interruption. One need not prove any fault basis for the divorce.

In Virginia, there are fault grounds and a no-fault ground. A no-fault divorce can be granted after six months separation if the parties have no minor children and have signed a separation agreement. Otherwise, the parties must be separated an entire year.

Virginia also allows for a spouse to file for divorce based on the alleged fault of his or her spouse. The grounds include sexual infidelity (adultery, sodomy or buggery), conviction of a felony (which carries more than a year's sentence), cruelty (mental or physical), desertion, abandonment, or the creation of a reasonable apprehension of bodily hurt.

But That's MY Stuff

In both Virginia and North Carolina, your spouse has no claim to your separate property, as long as you keep the property segregated. Any items you had prior to the marriage, any gifts given except for gifts from your spouse, and anything you inherit will remain yours. If you have mixed in your separate property with marital property, changed the title to joint names, or actively increased the value of the property, you may have transformed the property into marital or hybrid (Virginia) or divisible (NC) property. Hybrid/divisible property is somehow a combination of separate and marital assets.

Frequently, I'll have a client upset because a spouse has stated that he or she is going to lose some sentimental heirloom in the divorce. He's threatening to take half of her aunt's china in the divorce. She's threatening that he'll lose his grandmother's desk or his childhood comic book collection. If these items are separate property, your spouse has no claim to these assets and is merely trying to bully you.

"He Won't Sign for the Divorce!"

Although both spouses must consent to begin a marriage, the divorce process really only requires one spouse's request. Your spouse need not ever sign any papers or agree to do anything.... should he or she refuse to do so, the Court can enter orders of its own, even against your spouse's wishes.

Sometimes the spouse will not consent to divorce for emotional or moral reasons, for example, he doesn't think the relationship is beyond saving or she doesn't believe in divorce. Sometimes, a spouse will not consent to a divorce because she or he wants to maintain control of an asset or doesn't want to start paying alimony or spousal support.

Regardless of the spouse's reasoning for not wanting to divorce, a Court can still enter a divorce, provide for support, rule on custody issues, and divide a couple's assets and debts. No one ever need consent or sign anything. The person must be notified of the lawsuit, but choosing not to participate will not bar the Court's action.

That being said, having a signed agreement between the parties does make a case much easier and cause the parties to pay less in attorneys fees.

Domestic Violence Risk Assessment

Oprah had Gavin de Becker on today's show about domestic violence. Another guest had been kidnapped and assaulted by her ex-husband, nearly dying after the attack. Gavin de Becker spoke about his program, mosaic, which can assess the potential for escalated risk of domestic violence.

The National Coalition Against Domestic Violence reports that one out of four women will be abused by her partner in her lifetime. The mosaic tool may help victims of domestic violence truly become survivors by avoiding lethal attacks.

For a free assessment, click here.

For help leaving a violent relationship, call the National Hotline at 800-799-SAFE (800-799-7233) or go to www.thehotline.org for more information. You can also get information at NCADV's website.

North Carolina's Alienation of Affection Case Law

North Carolina still has a cause of action for Alienation of Affections. A person who causes the breakdown of a marriage may be sued in tort by the injured spouse. While typically these lawsuits are filed against the former spouse's paramour, they are not limited to causes solely based on adultery as a cause of the breakdown of the marriage. In order to win such an action, the Plaintiff must show that love and affection existed between the spouses and that the marital relationship was broken by the actions of the Defendant.

Several cases have brought verdicts of over a million dollars. A recent North Carolina case had a $9 million dollar verdict.

Virginia law does not provide for any such remedy.

Rewriting History

I found an interesting blogpost on The Bitter Divorcée. I haven't read the whole blog, but I enjoyed reading this post.

So often in my domestic violence cases, the batterer simply rewrites history by denying the abuse. Rather than acknowledging the problem and making efforts to change, the abuser points the finger for the abuse at the victim. The victim is alleged to be either lying, crazy, or somehow deserving of the abuse.

Where there has been domestic violence, particularly where there has been serious incidents of violence, it is so important for attorneys to acknowledge and address the client's concerns about safety. Make sure that your attorney is familiar with your history and offers you the tools to address it. Work with your local domestic violence agency to make a safety plan as well.

Child Medical Expenses

Under Virginia law, uncovered medical expenses are typically divided pro rata, in proportion to the parents' income. If you make $4000 a month and your ex makes $2000, you will pay two-thirds of uncovered expenses over $250 per child per year. Many parents make their own arrangements, such as just following a pro rata formula or simply dividing the bills fifty-fifty.

It is imperative for the person seeking reimbursement to keep the bills for which reimbursement is sought. Although it may not be technically required, I advise my clients to provide the receipts to the other parent. It makes sense to deal with these issues in a timely fashion, both on the part of the reimbursing parent and the parent seeking reimbursement. Every year, we have a case where the medical co-pays and other uncovered expenses are sought to be recovered across several years. It creates a problem of proof if those receipts were not kept and are no longer able to be obtained.

Putting Your Case on Hold

At least once a month, I hear from a client that she wants to put her case on hold for a while. Sometimes the parties want to consider reconciliation, sometimes one of the spouses needs to delay a divorce in order to continue health insurance coverage, and sometimes the parties just haven't reached the closure they feel they need prior to finalizing.

Cases have their own timing, and each case has subtle nuances. As an attorney, my goal is to help my clients achieve their (legitimate and legal) goals. As a client, your job is to let me know when your goals change, and our goal together is to work toward those goals.

One issue of concern, in Virginia, is that there is a three year rule for divorces. If a divorce has been filed in the Court and is inactive for three years, the Court will dismiss it. Similarly, in North Carolina, the Courts routinely schedule status conferences to move filed cases along. If cases are not resolved, the parties in the case risk the case being dismissed.

If you are not ready to proceed with your divorce, you need to be upfront about that with your attorney. You may decide together that an active divorce case is not your best alternative at that time, and that another form of relief would be better suited for you.

Collaborative Law

We had our local practice group meeting yesterday. The practice group is made of lawyers, financial professionals and mental health professionals who work together on cases to help couples resolve the issues surrounding their divorce in a respectful and cooperative manner. The professionals work with the couple to help them make important decisions about dividing assets and debts, sharing time with their children, and resolving support matters.

Collaborative law involves a completely different mindset than a litigated or settled case. In a litigated case, someone usually wins or loses, but often the "baby is split in half" leaving neither party really satisfied. I am consistently amazed by the creative solutions that families reach in collaboration, when the goal is to honestly discuss the issues, provide all information needed to reach a mutual decision, and to commit that court is not an option for the family. There is no "gotcha" -- the parties and the professionals work as a team, in tandem, rather than with opposing agendas. The agenda -- helping the parties learn communication skills and find their own answers to these often thorny issues -- is one the entire team is seeking.

If you are considering separation or divorce, please see more information on this website.

Child Support Guidelines

Child Support, in both North Carolina and Virginia, is typically decided by guidelines. For families with very high incomes, the guidelines may not apply. While judges do not have to follow the guidelines, they often do. If the judge deviates from the guidelines, an explanation of the legal reasoning is usually provided by the judge.

The most important factors for the guidelines are each parent's income, the cost of daycare for a parent to work, and the cost of health insurance for the child. In Virginia, spousal support received is added into the dependent spouse's income and deducted from the payor's income. In NC, alimony paid between the parties to the child support case is not considered.

If the parents have shared custody or split custody, there are alternate formulas to calculate child support.

"I Want Half, Eddie..."

Any child of the 1980s has heard Eddie Murphy's monologue about divorce. In it the punchline is about a wife who wants half of the assets at divorce.

In both Virginia and in North Carolina, there is a process called Equitable Distribution, where a judge will figure out a fair division of the couple's property and debts. In North Carolina, there is a rebuttable presumption that the parties will share the assets 50/50, but a litigant can allege and argue that a unequal division would be fairer. In Virginia there is no presumption, and the court looks at a list of factors to determine how to divide the assets fairly.

While it is not always the case that the assets and debts which were acquired during the marriage are divided equally between the parties, it is frequently what happens.

How do I divide retirement?

Courts in Virginia and North Carolina have the ability to divide assets acquired by a divorcing couple which were acquired during the parties' marriage. It does not matter if the asset is only in one person's name. Retirement accounts (pensions, 401k accounts, IRAs, etc.) can be divided by the court, even if the employee disagrees.

The Court can enter an order called a Qualified Domestic Relations Order ("QDRO"), which authorizes and orders the employer or account manager to establish a sub-account in the spouse's name and/or roll over a portion of the account into an outside account for the spouse. If the account is divided by a QDRO there is no current tax consequence to the employee. As long as the spouse places the funds in a proper retirement vehicle, often an IRA, the spouse will not have any current taxable consequence either.

You do not have to cash out an account, incurring taxable income and penalties, in order to divide it. Dividing it with a QDRO allows the parties to divide the asset and delay the taxable event until the account is actually accessed.

What in the world is a 20/20/20 Spouse?

I grew up in a military family, live in a military community, and frequently represent service members and military spouses. Length of military service makes a big impact for military spouses who want to maintain some benefits after a divorce. For a military spouse who was married to the service member for at least twenty years and where the service member served at least twenty years active duty, the spouse will maintain military privileges if there was a twenty year overlap between the marriage and the military service.

The spouse cannot remarry, or the spouse will then lose the military benefits. The benefits to the 20/20/20 spouse are as generous as if the spouse were still married to a retired service member. One of the most important benefits for a 20/20/20 spouse is the retention of military health coverage. Other benefits include PX privileges, Commissary privileges, and use of military bases and facilities. The 20/20/20 spouse will maintain a military ID card in order to access these benefits. The value of these benefits is significant.

Revenge and Forgiveness

I am a divorce attorney. While many of my cases involve people who have already resolved the emotional issues which must be overcome in a divorce, in many cases either my client or her spouse still has emotional work left to do. The legal issues I need to help my client resolve will then take a backseat to the emotional issues and hurt which predominate. Either my client or the spouse is so hurt or angry that the divorce becomes a vehicle for revenge.

I heard this discussion on Speaking of Faith. There is, it seems, a scientific basis which helps us to choose to forgive rather than continue in the quest for revenge. It's an interesting perspective. When my client is able to focus on her future, rather than on punishing her spouse, she is often able to resolve her divorce at a lower financial cost to her. She is able to distinguish which matters really need her investment of time and legal resources and which issues will only distract her and keep her spinning her wheels.

I feel greatly rewarded helping my clients through what is a difficult and often devastating time in their lives, and I love watching them blossom as they find closure and move into their new lives.

Today, consider the cost of revenge.