With the volume of prospective clients attorneys meet with each year, similar concerns emerge between clients. While many client concerns are valid and need to be addressed, some common concerns are not worth your “worry” time. Going through a divorce is stressful. In an effort to minimize stress and to allow you to reallocate your “worry” time to something more enjoyable, let’s nip these fictions in the bud:
1. My spouse is transferring all of our assets into his Corporation/LLC. I’m afraid I will lose out on these assets.
This is a popular concern that is raised by potential clients who have self-employed spouses. Generally, this is marked by a spouse moving assets from joint accounts or attempts to refinance or retitle property from the parties’ names into the name of a company solely owned by said spouse. While their creative thinking is commendable, it is useless in 99% of instances. The transfer of marital assets without the permission of the other spouse does not change the character of the asset. Not to mention, if the LLC was formed during the marriage with marital funds, it is also at least partly marital, regardless of ownership.
2. My spouse owns a business and uses business funds for personal expenditures, but doesn’t pay a lot of money in salary. Is his “salary” all that’s considered for support and other purposes.
Self-Employed spouses are more heavily scrutinized by courts due to their enhanced ability to “manipulate” business related income and expenses. A common tactic to attempt to minimize support payments or attorney fee awards is for the self-employed spouse to pay themselves very little in salary, while using business accounts for personal expenses like it’s going out of style. Most judges won’t fall it and in instances where the party is a sole business owner, you can bet business assets will be considered when calculating support, alimony, and property distribution. Rest assured crude deception like this will not be looked upon favorably by a competent judge.
3. I only want the father/mother to have supervised visits permanently is that possible?
Parents aren’t going to agree 100% on every child rearing issue, however many parents feel they deserve sole custody of their child even though there is no substantial risk to the safety of the child in the care of the other parent. Supervised visits are usually reserved for situations where allowing a parent unsupervised access to the child presents a substantial risk of harm or danger. Don’t expect a judge to require visits to be supervised because the visiting parent is inexperienced, is dating or married to someone you don’t like, or hasn’t been able to keep a job. While this might affect the duration of visitation, they are not, without further evidence, a reason to require supervised visitation.
4. I want a clean break, after I get divorced can I terminate my rights so I don’t have to pay child support?
No. Terminating a parent’s rights is major endeavor. It’s not something you and the other parent can get together and agree on nor can you initiate a motion to terminate your own rights. In order to terminate the rights of the other parent, you need to be able to prove that grounds exist under N.C. Gen. Stat. § 7B-1111 and a judge must find that it’s in the best interests of the child for the parent’s rights to be terminated. Grounds include but are not limited to, abuse, neglect, abandonment, killing of another child, and previously having your rights terminated to another child. TPRs are not a tool to avoid payment of child support.
5. If I’m not getting child support, my ex shouldn’t be getting any visitation right?
Wrong. Child support and visitation are two independent issues. It is not permissible to deny visitation because you aren’t getting child support.
6. I’ve not been allowed to see my child by the other parent for months, I want to file for emergency custody.
Emergency custody is reserved for extreme circumstances in which there is a substantial risk of bodily injury or sexual abuse or that there is a substantial risk that the child may be abducted or removed from the State of North Carolina for the purpose of evading the jurisdiction of North Carolina courts. This does not include violations of an order in which there isn’t a danger to the child or simple denial of access to the child. If you are being denied access to your child and no order exists, a custody action needs to be filed. If you’re being denied access to your child in violation of a court order, you can institute contempt proceedings.
7. I had an affair, does this mean I’m not entitled to any support or marital property?
Having an affair can prevent you from receiving alimony in some circumstances. However, it will not affect the amount of child support you are entitled to and in most circumstances will not harm your ability to receive your full share of the marital estate.
Being aware of your rights ensures that you are able to make informed decisions during your divorce. If you’re unsure about your rights, prior to agreeing or signing anything, speak with an attorney. Most attorneys will address your concerns for a reasonable consultation fee.