Understanding Amendment One in North Carolina

 

On May 8th, North Carolina voters (that is probably you) will go to the polls (hopefully) to vote on Amendment One.  Amendment One would theoretically change the North Carolina Constitution to ban same sex marriage. 

 

The actual wording of the Amendment is as follows: 

 

“Marriage between a man and a woman is the only domestic legal union that shall be valid or recognized in this state.”

 

The wording is a bit confusing and a little vague legally.  That has contributed to great confusion among people I have talked to as to what they would actually be voting for or against. 

 

In an effort to help educate people on the Amendment, I have included below the Executive Summary of an article entitled “Potential Legal Impact of the Proposed Same-Sex Marriage Amendment to the North Carolina Constitution” (footnotes omitted).  You can read the whole article here.  This article was written by law professors at the UNC School of Law (my alma mater in the interest of full disclosure). 

 

One thing to understand initially is that North Carolina does not recognize same sex marriage.  Same sex couples cannot get married or divorced in North Carolina under current law.  Perhaps that is one reason for the confusion.

 

My hope is that you will feel a little less confused about the Amendment and it’s potential impact before you vote on May 8th (I strongly encourage everyone to vote!).  Also, this is by no means the only view of the Amendment.  But, it is the most unbiased and academic one that I could find that was not from a political based group. 

 

EXECUTIVE SUMMARY

 

The proposed Amendment would not simply place this state’s current statutory prohibition of same-sex marriage into the North Carolina Constitution, as its sponsors seek.

 

Instead, the proposed language is problematically vague, untested, and threatens to upend years of settled law. In prohibiting state recognition or validation of “domestic legal unions,” the proposed Senate bill would introduce into the Constitution a phrase that has never been used in any prior statutory law in North Carolina, never been interpreted by its courts, and never been interpreted by courts in any other state.  Taken as a whole, the bill’s language is sufficiently vague, and its

scope significantly unclear, that it would enmesh our courts in years of litigation to untangle its appropriate meaning. Moreover the eventual result of judicial interpretation of the Amendment would be uncertain.  It could, however, be interpreted to upend completely the very minimal legal rights, obligations, and protections now available to unmarried couples, whether same-sex or opposite-sex.

 

The Amendment could be construed by courts to:

 

 Prevent the courts from enforcing private agreements between unmarried couples, therefore encouraging the wealthier members of couples to avoid marriage so that they will not be subject to obligations to transfer property;

 

 Interfere with child custody and visitation rights that seek to protect the best interests of children;

 

 Invalidate protections against domestic violence to members of unmarried couples;

                                                       

 Interfere with end-of-life arrangements, such as wills, trusts and medical powers of attorney, executed by unmarried couples;

 

 Invalidate domestic partnership benefits currently offered to same-sex and opposite-sex couples by local municipalities;

 

 Prevent courts from enforcing private employers’ agreements to provide benefits such as health insurance to employees’ domestic partners. 

 

The vague and untested language of the Amendment would therefore cause real harm to a broad range of North Carolina citizens. The proposed Amendment could be interpreted to strip the increasing number of unmarried heterosexual couples of their ability to order their relationships and property through contract, deny legal protection against domestic violence, and cut them off from custody of their children.  By the same token, committed same-sex couples in North Carolina, who are already precluded from marrying, would also no longer have access to these minimal protections.  Even if courts did not ultimately adopt a broad interpretation of the Amendment’s language, these couples’ rights would be uncertain during the inevitably long period of time that it took for these issues to work their way through the courts.  The Amendment’s broad sweep would also interfere with municipalities’ freedom to determine domestic partnership benefits for their own employees.  It could also undermine private employers’ efforts to attract top employees to North Carolina by providing employee benefits to domestic partners, as the courts and public medical facilities may not be permitted to recognize those benefits.  Finally, the breadth of the Amendment’s language and its untested terminology will significantly tax the resources of North Carolina courts, which will be charged with interpreting its scope.  

When is Divorce the Right Decision?

As a collaborative divorce lawyer, I generally extoll the virtues of avoiding divorce.  But, a film documentary has reminded me that to everything there is indeed a season, and a time to every purpose under Heaven.  

51 Birch Street tells a powerful story.  It is the story of a husband and wife that stayed married for 53 years, raised three kids, and seemed happy, but ultimately may have benefited from a divorce. 

After her death, Filmmaker Doug Block discovered that his mother lived most of her marriage resenting his father, and may well have preferred to have not been married at all. 

Further, shortly after his wife of 53 years died, Block’s father married his long lost former secretary.

That left Block to wonder whether his father had been in love with his secretary for decades, and whether his mother knew it.  

The film raises many questions.  One that sticks with me is when is it better to be divorced than to live life in misery, or pining for the person you truly love?  

I watch many of my clients struggle with these questions as they go through the divorce process.  Unfortunately, I can’t answer that question for them.  But, 51 Birch Street will serve as a reminder to me that there may be many right answers to these questions.  

Lessons from Christie Brinkley’s Divorce

As a collaborative divorce attorney and mediator, I spend a lot of time explaining the potential negative effects of an adversarial divorce. 

 

But, nothing exemplifies those negative effects as well as the story of Christie Brinkley and her husband.

 

They have been divorced since 2008, but they are still consumed by the anger and hard feelings generated in the divorce. 

 

Instead of moving on and finding happiness, they are emotionally chained to events that happened four years ago.  And imagine what their kids’ lives have been like since!

 

Unfortunately, this couple’s experience is not unique.  Less famous stories like theirs play out every day for many couples who choose to handle their divorce in a “win/lose”, “me versus you”, “attack mode” process like going to court or traditional negotiation process.

 

One of the keys to collaborative divorce is “de-escalation”, or the lowering of tensions and emotions during the negotiation process.  This helps couples think clearly and productively.  And, it models the blue print for a healthy future co-parenting relationship.

 

I can’t help but wonder what would have been possible for Christie Brinkley, her husband and her kids if they had chosen the collaborative divorce process.  I suspect that her Today interview would have been about her career, as intended, instead of her divorce.  

Unpredictable Alimony Awards

Alimony has always been of the most unpredictable issues for spouses and attorneys.  The chair of the Family Law Section of the American Bar Association indicated in a recent article “Divorce law is one of the most discretion filled areas of the law…”

In many states, including North Carolina, judges have wide discretion in awarding alimony, both in amount and duration.  Compare this to child support awards that are largely determined by a formula in North Carolina.

A recent article in the February 2012 issue of the American Bar Association’s Journal highlights national efforts to create more predictable alimony awards. 

The article states, “Many agree that divorcing spouses deserve more predictable outcomes” and that the current alimony process in court “has been attacked as antiquated, unbalanced and unfair.”

Here are some of the proposals and efforts that have been undertaken by other states or legal groups according to the article:

  • In 2011 Massachusetts passed the Alimony Reform Act.  The new law created a formula for calculating alimony awards.  The law also ends alimony when the paying party reaches retirement.  Further there is now a 12-year limit on alimony payments in that state.
  • Oklahoma is trying to reduce a party’s ability to get military retirement pay as alimony.
  • Rhode Island generally limits alimony payments to five years.
  • In 2004, a Florida lobbying group tried to end alimony in that state forever.
  • The American Academy of Matrimonial lawyers suggests the following formula:
    • 30% of the paying party’s gross income minus 20% of the receiving party’s gross income
    • The receiving party should not receive more than 40% of the couples’ total combined gross income
    • For example: If one spouse makes $100,000 and the other makes $50,000, the numbers look like this:  $100,000 x 30% = $30,0000; $30,000 minus $50,000 x 20% ($10,000) = $20,000.  So, the receiving spouse would get $20,000 a year in alimony.
    • And, the duration would be calculated by multiplying the length of the marriage by a fraction.

These efforts clearly indicate that there is a big problem for divorcing couples using the courts to determine alimony awards.  

Their outcomes are highly discretionary and therefore very difficult to predict. Of course, couples always have the option to opt out of the unpredictable alimony system currently in place. They are free to resolve alimony issues in whatever way they choose in processes such as collaborative divorce and mediation. 

As the current alimony system comes under further attack, wise couples may elect to do just that. 

 

 

New Protections Against False Paternity and Child Support Claims in North Carolina

As of January 1 of this year, men in North Carolina have some new protections from false paternity claims. 

Since the beginning of this year, new laws have been in effect that provide new procedures for men who want to dispute that they are the father of a child. 

The legislature amended or created three laws that give fathers a clear-cut process for asking a court to officially declare that they are not the father of a child.

Specifically the new laws provide a way to ask a court to overturn a paternity order, an affidavit of parentage or a child support order if the father believes he is not the father of the child. 

However, the alleged father has only one year from the time he knew or had reason to know that he was not the father to challenge paternity under these new laws.

The new laws for overturning paternity orders or affidavits of parentage require two showings:  First, a father must prove that the paternity order or affidavit was created by “fraud, duress, mutual mistake, or excusable neglect.”  If a father files a motion alleging sufficient facts, then the court has to order genetic testing of the mother, child and alleged father to determine whether the alleged father is the actual father.

If the alleged father can prove fraud, duress, mutual mistake or excusable neglect AND the genetic tests show that he is not the father, then the court can set aside the paternity order or affidavit. 

Further, a new statute allows men to ask a court to let them out of child support if they can prove by clear and convincing evidence that:

1. He has not acknowledged paternity of the child, or that he acknowledged paternity without knowing that he was not the actual father (“acknowledgement” includes public acknowledgement and supporting the child while married to the mother,  sworn statements and affidavits claiming to be the father, consent orders, voluntary child support agreements, or any other legal agreement to support the child, and admissions of paternity in open court); and

 2. He had not adopted the child; and

 3. He has not legitimated the child; and

4. He is not the child’s legal father under N.C.G.S. 49A-1; and

5. He has not done anything to prevent that actual father from asserting his parental rights to the child; and

6. Genetic testing shows that he is not the actual father.


If the man can show all of the above facts (no juries are used in these cases), then the court is required to cancel the child support obligation.  However, the man generally does not get any money back that has already been paid.  (The man can get any support that he has paid from the filing of this motion until the cancellation of the support obligation if he can prove that the mother conned him into believing he was the father).   The man cannot get any money back if he has been making payments to anyone other than the mother.  The court also has to order that the birth certificate be changed to remove the man’s name.

Men and their attorneys have long cried out for a better way to challenge false paternity claims.  They now have relatively clear processes for defending themselves from these claims. 


 

Why You May Want a Pre-Nup

Pre-nuptial (also “pre-marital”) agreements are what everybody calls  “pre-nups”. 

Pre-nups have a mixed reputation in our society.  Some people see them as smart protection from gold digging prospective spouses.  Others seem them as cold-hearted unromantic acts that stand in stark contrast to what you’re supposed to be feeling before you get married.

But, most people don’t know about another more positive use of a pre-nup:  An antidote to an ugly divorce™. 

You and your future spouse can create a pre-nup in which you agree to try to avoid an ugly divorce if the marriage doesn’t last forever.

You can sign a pre-nup in which you both agree to attempt to resolve any future divorce, custody, child support, alimony, and property division issues through collaborative divorce or mediation before you go to court. 

This kind of pre-nup doesn’t determine the terms your ultimate resolution.  You don’t have to figure it all out ahead of time.  It simply determines the first process that you’ll use to figure out the details if things don’t work out.

A pre-nup cannot prevent a court from ordering financial support to a child.  And, in North Carolina, a court always has the right to enter an order for the custody and support of a child if and when the court finds it necessary.

However, North Carolina courts will enforce pre-nups under current law.

There are many potential benefits of a pre-nup that requires a couple to attempt a collaborative divorce or mediation before going to divorce court.  What are they? 

EMOTIONAL BENEFITS:  From an emotional standpoint, you would be committing to each other that even in the unfortunate event that things don’t work out, you do not want to put each other through the ringer in a divorce. 

Some people have are afraid to get married.  Many of those people have a fear of divorce, instead of a fear of marriage.  And that fear is usually based on their understanding of what a bad divorce looks like.  Maybe they have been a party to a bad divorce as either a spouse or child. 

A pre-nup that requires you to first try to handle a subsequent potential divorce with dignity, grace and respect may take a lot of the fear of divorce away.   And, that, in turn, may take some of the fear of marriage away.  And, less fear seems like a very good thing for the health of any marriage. 

FINANCIAL BENEFITS:  Financially, this kind of pre-nup commits you to processes that seek to preserve your financial well being in the divorce process.  Both collaborative divorce and mediation are based on the idea that people don’t want to spend their life’s savings on divorce attorneys and court battles.

LEGAL BENEFITS:  Legally, collaborative divorce and mediation open an almost limitless range of options for resolving divorce issues that are frequently not available in court.  These options often serve families far better than the limited options that a judge faces. 

Nobody wants to think about divorce when they are thinking about getting married.  But, we do it anyway.   Rather than letting it be a scary idea that sits in the back of your mind, you can plan for that “what-if” before you get married.

After all, agreeing in a pre-nup not to go to war in the event of a future divorce is an act of love in itself.  And, it may be a good step towards ensuring that your pre-nup never matters.  

Update: Family Financial Settlement Mediation Certification

I am happy to announce that I have been certified to mediate court-ordered Family Financial cases by the North Carolina Dispute Resolution Commission (NCDRC).  

While I have mediated family financial issues by for families that selected me in the past, I am now certified for court appointed mediations in the family law field.

This means that judges in Wake and surrounding counties can appoint me to mediate equitable distribution, alimony and other financial issues in family law matters.  

I look forward to continuing to help families resolve their financial problems as a NCDRC Certified Family Financial Settlement mediator.

The Soul Mate Myth?

Many authors and theorists have proposed that the idea of a “soul mate” is a basis for our high divorce rate. 

The summary of this argument is that if you believe that your soul mate is out there, then you believe that marriage will work if you just find the right person. 

Thus, if marriage gets hard, then you married the wrong person.   

In short, believing in a soul mate is believing that marriage is about the other person’s personality, not our own efforts.  Or, so the argument goes.

Timothy and Kathy Keller argue against the soul mate idea in their recent book, The Meaning of Marriage. The following excerpt succinctly makes their point:

 You never marry the right person

The Bible explains why the quest for compatibility seems to be so impossible. As a pastor I have spoken to thousands of couples, some working on marriage-seeking, some working on marriage-sustaining and some working on marriage-saving. I’ve heard them say over and over, “Love shouldn’t be this hard, it should come naturally.” In response I always say something like: “Why believe that? Would someone who wants to play professional baseball say, ‘It shouldn’t be so hard to hit a fastball’? Would someone who wants to write the greatest American novel of her generation say, ‘It shouldn’t be hard to create believable characters and compelling narrative’?” The understandable retort is: “But this is not baseball or literature. This is love. Love should just come naturally if two people are compatible, if they are truly soul-mates. “

The Christian answer to this is that no two people are compatible. Duke University Ethics professor Stanley Hauerwas has famously made this point:

Destructive to marriage is the self-fulfillment ethic that assumes marriage and the family are primarily institutions of personal fulfillment, necessary for us to become “whole” and happy. The assumption is that there is someone just right for us to marry and that if we look closely enough we will find the right person. This moral assumption overlooks a crucial aspect to marriage. It fails to appreciate the fact that we always marry the wrong person.

We never know whom we marry; we just think we do. Or even if we first marry the right person, just give it a while and he or she will change. For marriage, being [the enormous thing it is] means we are not the same person after we have entered it. The primary challenge of marriage is learning how to love and care for the stranger to whom you find yourself married.

 

Their point is made from a Christian perspective.  But, the point stands regardless of religious or spiritual issues:  “The primary challenge of marriage is learning how to love and care for the stranger to whom you find yourself married.”

Food for thought for those married or wanting to be married.  I certainly see the soul mate belief echoed in many clients and their spouses.  

I don’t know whether the soul mate belief contributes to our divorce rate, and we may never know for sure.  But, I do think some serious consideration of the issue helps immunize a marriage from divorce.

Immunizing Your Marriage Against Divorce

In my experience, differing and unmet expectations are often the genesis for divorces.

Typically, tension develops because the husband and wife entered the marriage with unspoken but differing expectations about the issues they will confront after the wedding.

Those differing expectations can create conflict.  Unresolved conflict creates rifts in marriages.  Rifts create divorces.

One way to immunize your marriage against divorce is to learn to resolve conflict effectively.  That is something that typically takes time to learn and very few people possess that skill on the day they are married. 

Another great way to help immunize your marriage against divorce is to identify and address your differing expectations before the wedding.

How do you do this?  Pre-marital counseling is a great tool for identifying potential future conflicts. 

But, if pre-marital counseling is not your cup of tea, there are tremendous benefits to simply having a conversation with your future spouse about some typical issues that I have seen come up in marriages that end in divorce, such as:

– Who will work and how much will they work?  What kind of work/life balance do you expect the other person to maintain?

– How much money do you expect to make as a couple?

Ÿ – What kind of lifestyle do you each expect?

– Will one of you will stay home if you have kids?

– Do you want kids?  How many?

Ÿ – Do you prefer to be financially conservative (lots of saving, low risk moves) or more daring (lower savings, higher risk moves)?

– What kind of parenting styles do you anticipate?

– What are appropriate discipline techniques for your family?

– Where will you spend holidays and who else will be there?

– How involved will your in-laws and extended families be in your lives?

– How will you share the chores of the household?  Will you share them at all?  If not, who is going to do them?

– How clean do you expect your house to be on a regular basis? 

– What kinds of things do you expect to be able to spend money on?

– Who will handle the family finances?  

– Will the family follow a budget? 

– Do you believe in having debt, or are you debt averse?

All of these issues and more can be sources of friction in a marriage if not addressed early on.  Every couple has their own points of conflict.

I have found that many people make assumptions about their future spouse’s feelings on these topics; only to later find out they were wrong.  There’s an old saying about what happens when you “assume”, and it holds true in marriage as well.  Don’t assume what your future spouse thinks about something; find out.

Identifying and discussing these issues early on may not be comfortable. But those conversations will help prevent future conflict and therefore immunize your marriage against divorce down the road.  And that is a truly worthy goal.

Top Five Slightly Sarcastic Co-Parenting Tips for the Holidays

The holidays can be stressful.  And they can be especially stressful for families in the midst of a separation or divorce.  But, there are some better and worse ways to handle the holidays.  Here are five tips to help you avoid mistakes that I’ve seen others make (it’s late in the year and my sarcasm filter is a bit fatigued, so excuse the snark):


1.         Don’t Hog the Kids:  Big holidays are important to kids.  They want to share the experiences with both parents and maybe even both sides of the extended family.  Just because you don’t care whether the kids see the other parent for these holidays doesn’t mean that it’s not important to the kids.

 

2.         Gift Giving is Not a Competition:  Don’t try to outdo or show-up the other parent with your over-the-top gift deluge.  You can’t buy your kids’ love; they already love you.  And, if they don’t, then that life size robotic T-Rex from the Times Square Toys R Us isn’t going to change that.

 

3.         Respect Traditions:  Kids like their family’s traditions (well, usually anyway).  Traditions represent stability and predictability for kids, something they are desperately looking for in the midst of a separation or divorce.   Maybe you’d rather eat a giant bowl of Aunt Bethany’s lime Jell-O mold with the cat food topping (anybody catch that reference?) than go on that caroling trip through the neighborhood.  But, that doesn’t mean that the kids don’t like it. 

 

4.         Don’t Argue About The Holidays In Front of the Kids:  Wanna know how to ruin the holidays for the kids?  Get in a fight about the holidays in front of the kids!  They’ll really come to cherish the annual holiday family shouting match.  Good times.

 

5.         Don’t Force the Kids to Choose Their Holiday Schedule:  Another stellar way to take the fun out of the kids’ holidays is to tell them “You get to choose whom to spend the holidays with!”  No pressure.  “Dear Santa:  You know, toys are great and all, but this year for Christmas I would like to be faced with a no-win decision that forces me to choose between two people that I love dearly, with the risk of terribly disappointing one of them!  And, if you can fit some self-esteem and peace of mind in your sack for next year, that would be great.  I think I’m gonna need it.  Love, Timmy.”

HOLIDAY BONUS!  (Sorry if you were expecting a Jelly of the Month Club membership):  

6.  Have a Conversation About When To Reveal the Santa Clause Truth:  If you really want a lump of coal, then go ahead and tell your kids that Santa isn’t real without consulting the other parent.  Imagine the Christmas joy when the other parent finds out that their 5 year old doesn’t believe in Santa anymore because you let the cat out of the bag!  Seriously, it’s the gift that keeps on giving.  If the kids at school get to your kids first, then so be it.  But, nobody likes a Grinch.  Except for Cindy Lou Who and Martha May Who.  And they’re not real.