Shane Kennedy LawShane Kennedy Law2024-02-14T20:11:47Zhttps://www.shanekennedylaw.com/feed/atom/WordPress/wp-content/uploads/sites/1503158/2022/09/cropped-Shane-Kennedy-site-icon-32x32.pngOn Behalf of Shane Kennedy Lawhttps://www.shanekennedylaw.com/?p=467712024-02-12T20:13:28Z2024-02-14T20:11:47Zraising your children during a divorce. That said, there are some general strategies that you can implement that will hopefully make the process easier for you and your kids.
Tips for parenting your children during divorce
There are several ways to approach parenting during your divorce. Here are a few tips that we hope will help protect your children’s well0being throughout your marriage dissolution:
Allow them to feel their emotions: Losing their parents’ marriage is going to create a lot of grief and emotional upheaval. Although it may be painful to see, don’t force your children to suppress their feelings. And don’t expect your children to act in a way that makes you feel better. They’re dealing with their own internal struggles, which needs to be respected. You can help your children cope with their emotions by listening to them and encouraging them to talk to you and ask questions. If you need additional help, consider seeking out therapy for yourself and your children.
Don’t bash your children’s other parent: Regardless of what’s happened in your marriage, your children probably still love their other parent. And they need affection and support from their other parent. Bashing the other parent in front of your children is just going to disrupt their perception of the world and cut them off from that love and support that they need. If you feel the need to vent your frustrations, do so to family members, friends, or your therapist.
Present a united front: Even in a time of uncertainty, your children need stability. Despite the changes that your family is facing, you can provide some stability by presenting a united front on key parenting issues. Talk through how you and your spouse want to handle issues like discipline and house rules so that you’re providing your child with as much consistency as possible.
Be reassuring: Children internalize a lot of events that happen to them. Therefore, they might think that they contributed to your divorce or could’ve prevented it if they had acted differently. This creates unwarranted shame and guilt. You can curtail these thoughts and feelings by reassuring your children that they haven’t done anything wrong, they’re not to blame, they’re still loved by both parents, and that everyone will find a new normal.
Competently navigate your divorce
It can be difficult to keep an eye on your divorce proceedings while managing the turmoil you’re experiencing at home. But don’t let that derail the arguments you need to make in your divorce case. If you do, then you’ll be in a less favorable position post-divorce, and one that you likely hoped to avoid.
By developing a strong divorce legal strategy, you can give yourself peace of mind heading into your marriage dissolution. This, in turn, can make it easier to address the challenges you’re facing at home. So, don’t delay in crafting your divorce legal strategy. Get to work now so that you can protect your interests and your children as much as possible.]]>On Behalf of Shane Kennedy Lawhttps://www.shanekennedylaw.com/?p=467702023-12-18T17:12:09Z2023-12-18T17:12:09ZMarital and separate property
Before dividing real estate according to North Carolina law, all assets and debts must be classified as marital or separate property. Marital property is divided in a divorce. Any separate property remains owned separately.
Marital property is property that was purchased during the marriage. Property that was purchased by one spouse before the marriage is separate property but can become marital property if it mixes with marital funds.
For example, if you bought a home before you were married, but after you were married the mortgage on the home was paid with funds from a joint bank account, the home is now likely considered a piece of marital property.
Equitable distribution
North Carolina courts refer to property division as equitable distribution. Their goal is to divide marital property in an equitable, or fair, manner. The courts generally assume that an even, or 50/50 split, is fair.
However, there are times that an equal division would not be fair, so the court may award an unequal division of marital property.
When it comes to real estate, many times both spouses want to keep the marital home. Since a court cannot award it to both spouses, to achieve an equitable outcome, the home is awarded to one spouse, but that spouse must buy out the other spouse’s portion.
Assume that your marital home is worth $500,000 and there is no mortgage on it and you have no other marital assets to be divided. If you are awarded the marital home, you just received a $500,000 asset, while your spouse has received nothing.
To achieve an equitable division, the court could order that you refinance the home, taking out a mortgage of $250,000 that gets paid to your spouse. You then both leave the marriage with $250,000. As part of the refinancing, you will also likely need to remove your spouse’s name from the home.
How does a court choose who gets the house?
The court examines several different factors when determining which spouse receives the marital home. The spouse receiving it must be able to afford the costs.
When children are involved, the spouse who has primary custody of the children sometimes receives the marital home because the court does not want to move the children away from their primary residence.
You may worry that if you move out of the marital home you have no chance of it being awarded to you. This is not necessarily true.
Sometimes people leave their homes for valid reasons, such as to escape an abusive situation. The home is still marital property and you have an equal right to it. However, which spouse is still living in the home will be a factor the court examines.
Other types of real estate
If you own other real estate besides a marital home, the same general equitable distribution rules apply. One spouse may receive the marital residence, while the other spouse receives the vacation home, provided they are of relatively equal value.
You might own real estate that is separate property. This may be a situation where the court would award an unequal division of marital property to obtain a fair outcome. Your spouse may receive the marital home and not be required to pay you a portion of the equity since you own a piece of separate property.]]>On Behalf of Shane Kennedy Lawhttps://www.shanekennedylaw.com/?p=467632023-12-04T05:29:07Z2023-10-16T21:23:52ZSeparate property
Remember that the married couple must divide their marital property. They don't have to divide any separate property. What is the difference between marital and separate property?
For the most part, marital property consists of any assets and debts the married couple obtained during the marriage and separate property consists of anything the individuals owned before the marriage. However, there are exceptions to that rule.
Some important exceptions include inheritances and gifts received by one spouse in their name during the marriage.
To give a simple example, imagine Nick and Nora are married for 10 years before they divorce. During the marriage, Nora's uncle Stan dies, leaving Nora a generous $100,000 inheritance. The will mentioned Nora only, and so a court would likely find that the inheritance is Nora's separate property. Because it is separate property, it does not need to be divided in divorce.
Commingled assets
So far, this issue doesn't seem so difficult, does it? However, the issue of inheritances can get a lot more complicated when inherited assets get commingled with marital assets. This is especially common in cases involving marriages that lasted more than a few years.
To explain what we mean, let's return to the example of Nick and Nora. Now, imagine that when Nora inherited the $100,000 she deposited it in a new investment account in her name The account does quite well, and after a few years it has doubled in value. Nick and Nora withdraw $30,000 from the account to remodel their patio.
Fast-forward a few years and now Nick and Nora are divorcing. How are they going to divide this investment account? Does Nora get to keep all of it because it started with her $100,000 inheritance? Does it matter that the account was in her name only?
The answer is likely no. A court might decide that Nora gets to keep at least $100,000 from the account because that was the amount of her inheritance. However, Nick likely has a claim to some of the interest the account has acquired over the years. After all, the couple treated the account like it was their marital property during the marriage.
As you might imagine, it can be quite complicated to go through the history of the inheritance and the account in order to determine what share Nick might deserve. In some cases, a court might have to resolve an issue like this. In many other cases, the parties themselves negotiate a solution.]]>On Behalf of Shane Kennedy Lawhttps://www.shanekennedylaw.com/?p=467622023-12-04T05:29:12Z2023-08-18T07:37:36ZA farmer divorce has specific concerns to address
Divorce is universal as people’s relationships stop working and they decide to part ways. Farmer divorces are no different and they happen across the United States. There are common denominators in a farmer divorce that people need to be aware of.
In recent years, people realized their marriage was failing in part because they were forced to spend more time together than they normally did due to the national crisis that resulted in people working from home or losing their jobs. For farmers, “working from home” is an everyday circumstance. This can stoke tensions that other couples do not have.
As a business, a farm is vulnerable to various problems that are beyond the owners’ control. A weather-related disaster can ruin crops and be exceedingly costly. Equipment could break down, there could be animal illness and a lack of certainty as to how much income will be brought in.
When the marriage falters, a farming family needs to try to divide its assets in a fair way. If the business and property are commingled, it can cause confusion. There are likely to be business accounts, retirement accounts, loans and more that can be hard to calculate and split.
In North Carolina, the courts strive to come to a fair resolution when dividing property. That is not necessarily 50-50. Issues such as who owned what at the start of the marriage and how much each side contributed to an increase in property and business value will be considered. Some farming couples had contingencies in place in case they divorced like a premarital agreement. This needs to be scrutinized if there is such an agreement.
Be prepared when moving forward with a farmer divorce
The personal, professional and financial implications of any divorce can be confusing. That is particularly worrisome in a farm family divorce. Just as any aspect in life, divorce is part of the journey. Trying to split the farm fairly while maintaining its operation can be difficult, but with thoughtful planning and flexibility, it is possible to make it through.
This is a specific area of the law and it is vital to have tailored assistance to address the issues that will arise. Perhaps the sides are on reasonably good terms and can negotiate an amicable settlement without an extended court case. They might specifically determine who is entitled to what and move forward. In more contentious cases, the situation could take longer to hash out.
Regardless, people need to know their rights and have options to keep the farm operating while trying to end the marriage. Knowing and preparing for the distinctive factors that are part of a farmer divorce is essential from the outset and can be helpful with reaching a positive outcome.
]]>On Behalf of Shane Kennedy Lawhttps://www.shanekennedylaw.com/?p=467612023-12-04T05:29:16Z2023-07-05T22:24:40ZOn Behalf of Shane Kennedy Lawhttps://www.shanekennedylaw.com/?p=467592023-12-04T05:29:20Z2023-06-20T20:50:43Zend a marriage can be an emotionally wrenching experience, but the process of divorce itself can often seem dry and technical -- a matter of financial disclosures, legal requirements and slow negotiations.
Divorce may take longer than you expected, and during the months that you are going through the process, you will surely feel unsettled: Your divorce isn't final, but you have already stopped feeling like you're married. Your living situation may be temporary, and your financial future may seem up in the air.
The situation may not be as dramatic as the early stages of your breakup, but it can be just as hard, if not harder. And that can take a toll on your mental health.
Mental health and divorce
Studies have shown profound links between mental health and divorce.
For one thing, mental health is often a factor that leads to report. A multinational study in 2011 looked at 18 recognized mental disorders and found that all of them were associated with an increased likelihood of divorce. The disorders most commonly associated with divorce were phobias, major depression disorder and alcohol abuse.
For some people who are suffering from these disorders, a divorce can make the problem worse. For others, the divorce itself may be what sets off their mental health crisis.
Other major studies have found an association between divorce and poor health. This includes mental health problems such as stress, anxiety, depression and substance abuse.
Working for your mental health
If you're dealing with mental health issues, it's important to seek out professional help. You don't have to face them by yourself.
That said, there are things you can do to take care of yourself. These can include things as simple as maintaining a regular schedule, eating well, exercising and checking in with friends. It can also involve maintaining a healthy emotional distance from your divorce. If you have children, do not complain to them about your ex -- that's important to their mental health as well as yours.
It can also help to speak about your mental health needs with your lawyer. A good lawyer can take care of details for you so that you can protect your health.]]>On Behalf of Shane Kennedy Lawhttps://www.shanekennedylaw.com/?p=467572023-12-04T05:29:24Z2023-04-25T18:47:30ZThe best interests of the child
First, courts will not base a child custody decision solely on the parent’s gender. North Carolina does not recognize the mother as the de facto custodial parent. Both fathers and mothers have an equal right to time with their children.
Instead, courts will base child custody decisions on the best interests of the child. When determining the best interests of the child, courts in North Carolina will consider several factors. The court will consider:
Whether domestic violence is an issue
Whether the child is safe with the parent
Whether the parents have asked to share joint custody
Whether a parent is, was or will be in the military and how this will impact the child
Each parent’s living arrangements
Each parent’s capacity to be able to provide the child with proper care
The relationship the child has with each parent
There are other factors that may be considered as well. These factors are codified in N.C.G.S.A. section 50-13.2.
What about what is fair to the parents?
While each parent may have an opinion on what is fair to them when it comes to child custody, this comes second to the best interests of the child. And, even if a parent was not a great partner, this will only be considered if it substantially impacts their ability to parent appropriately.
What about the child’s wishes?
Children might have a preference about which parent they will live with. The judge might consider these wishes, but the judge is not required to follow them.
The judge will consider whether the child understands what being truthful means and whether they are mature enough and have the judgment necessary to make a good decision about which parent they would prefer to live with. This is called reaching the “age of discretion” and it can be a different age for any child.
Child custody is a journey
Going through the child custody process can be an emotional journey for parents. But what is most important is that the child is cared for in a manner that is healthy and helps them thrive. This is why courts prioritize the child’s best interests when making a child custody decision.]]>On Behalf of Shane Kennedy Lawhttps://www.shanekennedylaw.com/?p=467532023-12-04T05:29:28Z2023-02-20T15:32:53Zyou can help your child if they are struggling with the divorce:
Stay as involved as possible in your child's life: You stay as present for your child as possible. Your child needs you now more than ever. Children tend to blame themselves a lot. You must continue to reassure your child that none of this is their fault in any way.
Be the best co-parent that you can possibly be: Understandably, divorce is extremely difficult and you and your spouse may not agree about everything concerning your child. However, whatever disagreements you may have, it is very important not to involve your child so that they don't feel responsible for what is happening. You will both need to try to keep everything as civil as possible.
Show your support for the time that your child spends with their other parent: Whenever possible, speak positively about your child's other parent and try to instill feelings of excitement in your child for the time that they will spend with the other parent. The better you make it sound, the better your child will feel.
Don't speak negatively about your child's other parent: If you are bitter and say negative things about your child's other parent, your child will probably feel that they are in the middle and must take sides, which is not good for anyone. No matter what you really feel, try to remain as neutral as possible when speaking with your child.
Maintain open communication with your child: It is never a good idea to be less than truthful with your child. They may sense if you are not being honest. That doesn't mean that you need to share every detail if those details may harm them in some way. You should encourage your child to express how they are feeling about the divorce and the new living situation. It is also important to continue to emphasize that none of this is their fault.
Try to get your child to understand that everything will turn out okay: As difficult as the situation is, you will want to convince your child that everything will turn out okay in the end. Change is difficult for everyone and your child is bound to be affected by all of the changes that are going on in their life at the moment. However, they must understand that they have two parents whom they can count on always.
Stick to routines: Whatever positive routines your child had in their life before must remain intact. Children need routines to flourish and to feel safe. Structure and consistency are essential for them to be happy. They also give your child peace of mind and hope that everything will turn out right.
Make sure that you are okay so that you can be okay for them: In addition to your child being at the top of your priority list, you must also not lose yourself in the process. Your health will bring peace to your child. The truth is that they have enough to worry about right now. They don't need to worry about you as well.
Get professional help, if it is needed: Your child may be in a situation where your love and support and that of the other parent are not enough. In that case, seeking counseling for your child and for yourself may make a tremendous difference. The counselor may be able to reassure your child in a way that you are not able to do. Everyone needs to heal from a traumatic situation in their own way and everyone needs help sometimes.
Seeking solid legal advice from a North Carolina family law attorney
The reality is that divorce and all of the issues that you and your ex-spouse need to work out are emotionally trying for everyone. If you can't seem to agree to the terms of your child-custody agreement, the expertise of a North Carolina family law attorney may make a tremendous difference to your case.
When it comes to child custody, the best interests of your child must be the top priority and your attorney can help you to come up with an agreement that works for everyone and that allows your child to continue to have a life that they deserve and that makes them happy without sacrificing time with either parent. Your child needs both of you and that is of the utmost importance.]]>On Behalf of Shane Kennedy Lawhttps://www.shanekennedylaw.com/?p=467522023-12-04T05:29:32Z2022-12-27T15:10:21ZMediation is required without a waiver
After this, a custody mediation is scheduled. Mediation is required, although it can be waived under certain circumstances, such as if your case involves abuse or substance addiction or if one parent lives more than 50 miles away.
Without a waiver, you must attend custody mediation. The purpose of mediation is to see if you and your co-parent can come to your own agreement on custody without having to go to court.
The role of a mediator
Mediation is a private meeting between you, your co-parent and a mediator. The mediator is not like a judge. They do not make decisions for you, or advocate for one side over the other.
A mediator listens to you and your co-parent explain your sides and may provide guidance toward a resolution.
Legal and physical custody
At your mediation, you and your co-parent will make decisions on legal and physical custody. Legal custody involves who makes decisions for your children on major issues, such as education, health or religion.
Legal custody is commonly shared between both parents. This means each of you has an equal right to make the decisions, and one of you cannot make a major decision without the other’s agreement.
Physical custody is who your children live with and when. Your physical custody schedule should consider all times of the year, including summers and holidays.
How to act at your mediation
A custody mediation is not the time to badmouth the other parent or tell them everything that they did wrong throughout your relationship. It is not a time to criticize their parenting skills.
Rather, a custody mediation is a time for open, honest and respectful communication about how the two of you are going to co-parent. North Carolina law decides custody using a “best interests of the child” standard, so you should keep this standard in mind at your mediation.
Attend your custody mediation with a willingness to compromise and be flexible. Even if you leave without your best-case result, it is a result you and your co-parent chose yourselves, rather than leaving it up to a judge.
How long does mediation last?
A custody mediation typically lasts between 1 to 2 hours. Realistically, if you cannot come to an agreement within that time, you are not likely to.
However, you can request a second mediation if you run out of time. Some parents simply need a little more time to think things through before further discussion.
Every custody case is different. Talking with a custody attorney about your situation before you attend mediation can increase your chance of a successful resolution.]]>On Behalf of Shane Kennedy Lawhttps://www.shanekennedylaw.com/?p=467502023-12-04T05:29:37Z2022-10-25T19:15:38Zdivorce, as couples separate their shared lives, they will need to divide this shared property.
This property can include bank accounts, retirement accounts, investment accounts, homes, vehicles, collectibles, businesses, household goods and many other types of assets. Some are easier to divide than others.
Equal division vs. equitable division of assets
The law presumes that the marital property will be divided between the parties equally. However, this does not need to occur if an equal division of property is not fair given the circumstances. Instead of an equal division, courts want to see an equitable, or fair, division of marital property.
In considering equitable division, the factors that judges will analyze include, but are not limited to:
The incomes of each spouse and whether one sacrificed income to allow the other spouse to further their career
The property owned by each spouse and each spouse’s debts
The length of the marriage and the ages and health of each spouse
The contributions each spouse made to acquire or grow an asset
Whether there is a need for the custodial parent to keep the marital home for the children
The tax consequences to the spouse who will be awarded certain property
The nature of the property, whether it is liquid or nonliquid property
Whether one spouse wasted assets leading up to the divorce
It is not always easy to divide property in a divorce in North Carolina. Some assets, such as bank accounts, are easy to determine the value and easy to divide. However, people cannot simply split houses in half.
There may be appraisals needed and couples may need to be creative in how they will split equity in assets such as homes. It is important to understand the process and consulting with an attorney who understands the difficulties that are associated with divorce can be important.]]>