Clients often have preconceived ideas of the laws applicable to their case. Many times they are correct, but just as often the lawyer’s task is to correct misperceptions. Addressed here are four commonly believed family law myths.
“I want a legal separation”
Clients who have been living apart often say they want a legal separation. Sometimes they mean an agreement that divides property and deals with child custody, child support or spousal support. Other times, they don’t realize that their decision to live in separate residences effects a valid separation.
Separation agreements must be in writing, but no writing is required for the separation itself. Separation requires only that spouses no longer reside in the same house and at least one of them must have the intent to remain permanently separate and apart. After a year of living separately with the requisite intent, they can get an absolute divorce in North Carolina, provided they satisfy the residency requirement of the divorce statute.
Many separated clients are pleasantly surprised to learn that they are already on their way to satisfying the separation requirement for a divorce before they see a lawyer. Keep in mind, however, that sleeping in separate bedrooms in the same house will not satisfy the separation requirement for a divorce.
“At what age can a child testify?”
A common problem in custody cases is determining how to get into evidence a child’s custodial preference for one parent or how to present evidence that only the child has witnessed. Both situations present hearsay problems if the child does not testify. Even when a child therapist has been involved, the therapist will often be unable to testify about the child’s wishes or personal experiences because of hearsay or privilege.
As a result, parents sometimes want to put their children on the witness stand at trial, and so they often ask about North Carolina’s age requirement for having a child testify. North Carolina law does not in fact specify the age at which a child can testify. I’ve had children as young as 7 years old speak with the judge in chambers.
But the age is not the issue. Rather, child witnesses must be capable of expressing themselves concerning the matter at hand and of understanding the duty to tell the truth. The bigger question, and the one you should ask your client, is whether a child should testify at all. That question presents a different set of issues.
“The bank accounts and car are in my name, so they’re mine, right?”
When I ask clients what financial accounts they owned when they separated, they often don’t list those in their separate names, thinking that only joint accounts are marital property. Similarly, they are quick to point out the separate titles to their vehicles, operating under the belief that the sole title means it’s theirs.
Depending on which side they’re on, they can be disappointed or pleased to learn that title does not always determine whether property is marital or separate. Most personal property acquired during the marriage with funds earned during the marriage is marital property, regardless of the title. Also true, however, is that depositing separate funds into a jointly-titled account does not automatically render the funds marital property. Title is not the issue. Rather, the relevant questions with most personal property concern when the asset was acquired and what funds were used to acquire it.
Title can control where real property is concerned. Real property creating a tenancy by the entirety is presumed to be marital, although that presumption is rebuttable.
“I need permanent alimony, so I’ll be taken care for the rest of my life.”
Permanent in the alimony context does not mean forever. In fact, North Carolina’s alimony statutes don’t mention the word permanent. Instead, the statutes talk in terms of alimony paid for a specified or indefinite term. But even alimony paid for an indefinite term can be modified or terminated under certain circumstances, depending on how the alimony was established.
If the spouse receiving alimony remarries or if either spouse dies, alimony terminates. If the receiving spouse cohabits in a marriage-like relationship, alimony will terminate. What many clients don’t realize, though, is that what they thought was life-long alimony can be reduced or terminated for any number of reasons beyond these. If, for example, a supporting spouse gets sick and is unable to maintain employment, alimony can be modified. Similarly, a supporting spouse’s retirement can be a change that merits alimony reduction or termination.
The best practice is to advise clients who receive what they think is permanent alimony to have a contingency plan in case the alimony is later reduced or terminated.
- By Catherine Pavur
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