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.  

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.

 

Opportunity Costs in Divorce

One issue that people frequently ignore in their divorce is opportunity cost

Opportunity cost is defined by my computer as “the loss of potential gain from other alternatives when one alternative is chosen.”

That’s a fancy way of saying that when you are doing one thing you are giving up the potential benefits of another.   It means that if you go west, then you give up whatever good things you would have found by going north, south or east.

So, what does that have to do with divorce? 

In divorce, people make choices from the day someone says that they want out until the divorce, and frequently far past that point.  They make choices about what to do with their energy, peace of mind, money, kids and stuff. The choose how to behave towards the soon to be ex-spouse.

In most cases, clients give some thought to the impact of their choice; i.e. “when I do this, the result will be ‘x’.” They think about the effect that will be brought about by their decision. 

What they generally fail to consider is the how that compares to the other possible decisions that they could make.  That is, they spend a lot of time thinking about what they’ll find if they go one direction, but very little time thinking about what they give up by not going another. 

For instance, when people choose to use an adversarial process for their divorce, they don’t give much thought to the benefits of non-adversarial processes that they are giving up.  They see what they hope to gain by duking it out, but they fail to see what the have given up. 

In many cases, people fail to see that choosing to fight about something is also a choice to forgo the peace of mind, free time or money that they could enjoy if they were to choose another way to handle their divorce. 

I frequently ask clients to consider what they could do with their time, energy and money if they resolved their case quickly and did not have to deal with their divorce anymore.  That gets them to think about the opportunity costs of the decision they are considering. 

Sometimes, it makes sense to continue the tough work of negotiation or a court battle.  But, that decision should only be made once the client considers the opportunity cost of that decision.

If you are considering a divorce, you may want to spend some time considering what you would do with the time, money, peace of mind and energy you can save by choosing to resolve your case through collaborative divorce, mediation or other non-adversarial processes.  

Empathic Communication Crucial to Negotiation

Perhaps the most crucial foundational skill of productive negotiation and communication is the ability to empathize with the other person.  Empathic communication (also known as “Non-violent communication”) is the cornerstone of the collaborative divorce process and interest based mediation. 

But, in the world of adversarial, positional and leverage based legal negotiations, this is a foreign concept.  Even today, in the vast majority of legal negotiations, the goal is not to understand the other party, but to “win”.  Period.  This seems to be especially true in divorce, custody, alimony, equitable distribution and other family law related cases.

The legal profession as a whole is simply behind the times in negotiation skills and processes. 

The business world has understood the importance of understanding and empathy between parties to a negotiation for decades.

As early as 1989, Stephen R. Covey, in his bestselling book The Seven Habits of Highly Effective People named empathic interest based communication as one of the seven habits.  Covey calls the habit “Seek First to Understand, Then To Be Understood.”

This book has been widely read and applied to the business world for over 20 years. 

Here’s what Covey has to say about empathy: 

“When I say empathic listening, I mean listening with the intent to understand.  I mean seeking first to understand, to really understand.  It’s an entirely different paradigm.”

“Empathic listening gets inside another person’s frame of reference.  You look out through it, you see the world the way they see the world, you understand their paradigm, you understand how they feel.”

“Empathy is not sympathy.  The essence of empathic listening is not that you agree with someone; it’s that you fully, deeply, understand that person, emotionally as well as intellectually.”

“Empathic listening is so powerful because it give you accurate data to work with.” 

“Next to physical survival, the greatest need of a human being is…to be understood, to be affirmed, to be validated, to be appreciated.”

“When you listen with empathy to another person, you give that person psychological air.  And after that vital need is met, you can then focus on influencing or problem solving.”

From a negotiation standpoint, the bottom line points are:

  1. That seeing the situation from the other party’s point of reference is crucial.
  2. That you do not have to agree with the viewpoint, just understand it.
  3. That empathic listening produces accurate data for the negotiation.
  4. You cannot influence the other person or problem solve until you have sought to understand the other party. 

Whether you are involved in a business negotiation or a divorce negotiation, understanding the crucial role that empathic communication plays in the conversation will be the foundation to finding an intelligent, durable and mutually beneficial resolution.

Communicating in Divorce: Tone Matters

One of the biggest challenges that many clients face in their divorce is how to communicate with their spouse or ex-spouse.  This especially important when a couple will be co-parenting down the road.

When children are involved, productive communication is crucial to protecting the kids from the ravages of a divorce.

That is easier said than done.  So, the question becomes how to productively communicate?  There is a lot of information about how do to that.  But, in my experience, a lot of it is somewhat hard to really grasp and put into practice in the heat of the moment.

One suggestion that I use is to speak to your spouse or ex-spouse the same way you would speak to your child’s teacher at a parent-teacher conference. 

After all, there are some strong similarities in the conversations.  The goal of a parent teacher conference is frequently the same as communication between divorced or separated parents: discuss issues regarding the kids and possible ways to address those issues.  Further, you may disagree with something the teacher says, you may be offended, and you are certainly emotionally invested in the topic of the conversation, i.e. your child.

Think about how you would speak to your child’s teacher.  What tone would you use?  What things would you say and not say, even if you were thinking them?  What would be your goal?

 

I suspect you would adopt some combination of the following techniques in a conversation with your child’s teacher:

            Ÿ          Paying attention

            Ÿ          Politeness

            Ÿ          Asking questions to clarify information

            Ÿ          Making an effort to understand what the teacher is saying

            Ÿ          Acting respectfully

            Ÿ          Working together

            Ÿ          Acknowledging the joint interest in your child’s well being

 

By contrast, you probably would not do the following in a conversation with your child’s teacher:

            Ÿ          Blame the teacher

            Ÿ          Accuse the teacher

            Ÿ          Yell

            Ÿ          Insult the teacher

            Ÿ          Threaten the teacher

            Ÿ          Act rudely

Why?  Because you understand that the teacher has a lot of influence over your child and spends a lot of time with your child.  Because your relationship with that caretaker is very important to your child’s well being. Because you know that you’re going to have to see that teacher again.  Because you actually want to have a productive meeting.  Because you want what is best for your child. 

That being the case, why would you treat your child’s other parent differently?  After all, isn’t your child’s other parent going to be at least as influential and important for your child as the teacher? 

Yes, there may be emotional reasons for treating your ex-spouse differently than your child’s teacher.  But, are your emotional issues more important than your child’s well being?

In my experience, having a parent adopt a tone appropriate for a parent teacher conference sets the stage for a productive collaborative conference or mediation.  And it gives clients an easy reference point, a convenient “go to” mode when they feel themselves struggling to communicate well.   

In my experience, this technique frequently helps, and rarely, if ever hurts.

 

 

Hidden Damage of Divorce: Revisionist History

Frankly, I don’t know the psychological term for it.  Maybe revisionist history is appropriate.  I seem to remember that the term “incongruence” may play into it.

But, whatever it is called, there is an odd (but predictable) event that frequently happens with divorcing couples.  Let’s call it the “contamination effect”. 

When a couple decides to separate, the disharmony of the tail end of the marriage somehow contaminates the rest of the marriage.  Sometimes one or both spouses look back on the whole marriage through the same lens that they view the separation or divorce.  The emotions of the very end of the marriage retrospectively color their view of the entire marriage.  Some couples even start playing the marriage over in their head looking for reasons to convert good memories of moments in their marriage to bad memories.  The phenomenon is displayed visually in this video.

This often becomes more prevalent as the legal fighting ramps up through adversarial negotiation and court battles.  In my experience, the worse the divorce gets, the more the couples’ view of their marriage is likely to be distorted.

And that phenomenon creates a lot more unnecessary destruction.  There are enough tough repercussions of divorce.  Couples should not have to lose the positive memories of their marriage in a divorce.  In fact, I suspect that this kind of thinking is what causes many people to give up on marriage once they have been divorced.

That is just one more reason why it is important that each couple make an educated decision about their divorce process.  Choosing a divorce process that does not create more hard feelings can be very important.  Honoring the years of marriage while creating a plan for each party to move forward can help couples leave a marriage without having to entirely revise their memories of the past. 

 

Is Alimony Reform Headed to North Carolina?

As described in this article, Massachusetts has recently revised its alimony laws.

The lawmakers in that state established stricter guidelines as to the length of alimony payments, among other revisions. 

Could Massachusetts’s reforms begin a trend towards alimony law reforms across the United States, and more importantly for us, in North Carolina?

Currently, North Carolina has no guidelines that directly tie an alimony award to the length of a marriage.  Rather, the alimony statute lists “the duration of the marriage” as one of 16 factors that a court must consider in making an alimony decision.  The statute is silent as to the weight of each of the 16 factors. 

In practice, North Carolina judges have wide discretion in making alimony decisions.  With so many factors to consider and the freedom to give more weight to some factors and devalue others, alimony decisions can vary widely from judge to judge and from county to county.

Many North Carolina judges use a “needs and income” approach to alimony.  That means that a judge determines what income is available to the spouses, and then determines the financial needs (not wants) for each party.   After that, the judge can use the 16 factors in the statute to settle on a number that they believe is reasonable.

It appears that Massachusetts’s judges have retained some discretion on making alimony decisions under their new laws, but now have stricter boundaries for their decisions.

The question is whether other states, including North Carolina, will follow Massachusetts’s lead and move toward more defined rules for alimony decisions in the future.