Marshall & Taylor recognizes Sarah Privette who was elected to the Board of Directors of the Tenth Judicial District Bar Association and received the President’s Award.

Jeff Marshall is a board certified specialist in Family Law
Business North Carolina's Legal Elite. North Carolina Super Lawyers.
Board Certified Specialist in Family law.

How Are IRAs Divided in Divorce?

IRAs, among other assets, can be subject to division between two spouses during a divorce. How much of the account each person receives will depend on various factors outlined in North Carolina statute § 50-20. A judge can use their discretion to decide what’s equitable based on the circumstances.

North Carolina is an equitable distribution state. That means the courts typically split IRAs and other property in a way that’s fair for each spouse. However, equitable doesn’t always equate to dividing everything down the middle.

A 50/50 split might not be fair if one spouse makes significantly more money than the other. The judge assigned to your case will review all contributing factors before deciding how to equitably distribute the funds in your or your spouse’s IRA account.

Marital Property vs. Separate Property

It’s critical to determine whether an asset in a marriage is marital property or separate property.

Marital property is any real and personal property one or both spouses currently own that they acquired during the marriage but before the date of separation. If you or your spouse opened an IRA account while married, the funds could be subject to equitable distribution.

Separate property is personal and real property one spouse owned before the marriage or acquired while married as an inheritance or gift. An IRA that was opened and funded prior to the marriage date might be considered separate property. However, it could become marital property if either spouse used any marital property to fund the account.

Typically, state law considers an IRA marital property. That means each spouse could have rights to a portion of the funds. It gets tricky if someone started contributing to their IRA account before entering into a marriage. The court might determine that only a portion of the funds are subject to division between the spouses.

Factors Used to Determine Equitable IRA Distribution

The court will divide all marital property by using the net value unless it decides dividing the asset equally is not equitable. A judge can consider any factors under North Carolina statute § 50-20(c) to divide the funds in an IRA:

  • Any direct contribution made during the marriage to increase the value of the IRA acquired before getting married
  • The income, liabilities, and property of each spouse on the date the IRA will be divided
  • Any obligation for support from a prior marriage
  • Age and health of each party
  • Duration of the marriage
  • The expectation of a retirement account that is not marital property
  • Any direct or indirect contribution, equitable claim, or interest in acquiring the IRA by the person without title, including expenditures or joint efforts and services and contributions
  • Tax consequences of dividing the IRA funds
  • Acts of either spouse to develop, maintain, expand, or preserve, or neglect, waste, convert, or devalue the IRA account after the separation date but before distributing the funds

The judge has complete discretion to use any additional factors they believe are fair in deciding how to split a spouse’s IRA during the divorce.

What You Can Do to Avoid Settling the Matter in Court

It’s always best to reach an agreement about how to divide an IRA without going to court. If you and your spouse can settle on the terms of asset division, you could avoid a judge making the decision for you. When you have to bring your case to court, you have little to no control over the outcome.

A mutually beneficial arrangement does not have to involve distributing funds in an IRA equally. One of you might determine that keeping the account in exchange for another asset works in favor of you both.

For example, you could negotiate with your spouse to keep the IRA you acquired during the marriage and allow them to keep the marital home. Or you might decide to give up the funds to your spouse if they let you pay less in child support payments.

Contact Us

If you’re going through a divorce and want to learn about your legal options for dividing an IRA, contact Marshall & Taylor PLLC immediately. We will protect your rights and fight to try to achieve your desired outcome.

Whether you worked hard to put money into the account or spent years caring for your children so your partner could plan for both of your retirements, you deserve to walk away with your fair share of the funds.

You should not attempt to handle divorce proceedings yourself. You need an experienced and knowledgeable divorce lawyer by your side to guide you through the process and look out for your interests. Marshall & Taylor PLLC will work hard to meet your needs, so you don’t end up with nothing.

Call us at 919-833-1040 for your confidential consultation right now.

How Are 401(k)s Divided in Divorce?

When you’re going through a divorce, you might face a contentious battle with your spouse over who should keep which property. However, most people commonly fight over a house or car and forget about other important assets like 401(k)s.

Sometimes, a 401(k) is the biggest asset a person has. You spent your life saving for your retirement but could end up sharing part of the funds with your spouse after finalizing the divorce. Retirement accounts are often treated as marital property. That means that even if something is only in your name, it belongs to both you and your spouse.

It’s always best to try to divide property during divorce proceedings without involving the court. If a judge needs to make these decisions for you, you could walk away without your fair share of the 401(k) account. You relinquish your control over the outcome of the case if the court must resolve your property division dispute.

It’s critical to protect your rights and interests when going through a divorce in North Carolina. Below is an explanation of state laws regarding 401(k) division and what you should do to prepare yourself for the legal proceedings you’ll encounter in your divorce.

Determine the Value of the 401(k)

Whether the 401(k) is in your name or your spouse’s name, you need to determine the amount to be divided between the two of you. That doesn’t necessarily mean the total balance in the account. Some retirement funds are only subject to division if they meet specific requirements.

If you opened a fully vested defined-contribution 401(k) account while you were still married and used marital property to fund it, the total balance would be subject to equitable division. However, if one of you opened the account and started contributing to it before marriage, determining how to split the money is a bit more complex.

Factors Used to Determine Equitable 401(k) Division

If you and your spouse can’t agree on how to divide a 401(k) plan, you might have to take the matter to court. Judges often use their discretion to decide what’s most equitable during property division.

“Equitable” doesn’t necessarily mean a 50/50 split. If one person makes considerably more income than another, the lower-earning spouse might be given a larger share of the 401(k) funds.

The judge can consider a range of factors when making their decision, such as:

  • Whether the 401(k) plan is marital or separate property
  • The age of each spouse
  • The general health of both parties
  • Amount of income each person earns
  • Duration of the marriage
  • Direct contribution by one spouse to increase the value of the asset
  • Any obligations from a previous marriage, such as paying child support or spousal support
  • Contributions one party made to further the other’s career or education
  • Terms defined in a prenuptial agreement

If you want to avoid having a judge determine how much of your hard-earned 401(k) funds you can keep, you should attempt to resolve this dispute with your spouse outside of court. You might be able to come to a mutually beneficial agreement.

For example, some people will negotiate to give up the house or marital vehicle in exchange for their retirement account. Others will agree to forego their share of the 401(k) funds in exchange for paying less in spousal support. Whether you settle the matter amicably or need to argue your case in front of a judge, you should hire a lawyer to protect you during the process.

Change the Beneficiary on Your 401(k)

Some divorcing couples will argue for months about who deserves all or some of the 401(k) plan. However, the winning party might forget to change the name of the beneficiary.

Many people want to protect their spouses if something happens to them. They usually do this by adding their spouse’s name as a beneficiary to their retirement accounts.

If you get divorced and forget to change the beneficiary on your 401(k), your ex could receive the funds when you die even though you’re no longer married. You should take immediate action to take your spouse’s name off the account. It’s as simple as calling the plan administrator and completing a new beneficiary designation form.

You could add a child’s name instead, or a close relative you want to access the asset once you pass away. However, the decision to remove your ex’s name is entirely up to you. If you still want them to be taken care of when you’re gone, you can keep them as a beneficiary on the account.

Contact Us

If you’re going through a divorce and want to learn about your legal options for dividing the funds in a 401(k) plan, contact Marshall & Taylor PLLC immediately. We can provide the legal services you need to protect your rights, so you can leave the marriage with the assets you want and deserve. We will remain by your side from start to finish of the process to offer the support and guidance necessary to get you through this challenging time in your life.

Call us at 919-833-1040 right now for a consultation with one of our property division attorneys. We’re available 24/7 to speak with you when you need us the most.

How Is Property Division Determined in NC?

When you’ve decided to divorce, one of the things you and your soon-to-be-ex may argue about is the division of property. There are several considerations you should keep in mind when you decide how to handle who gets what.

According to North Carolina statute § 50-20, there are three types of property:

Marital Property

Marital property is any personal and real property owned that one or both spouses acquired during the marriage before the date they decided to separate. Examples include:

  • Bank accounts
  • Retirement accounts
  • Real estate
  • Vested and nonvested pension plans
  • Motor vehicles
  • Deferred compensation rights
  • Vested and nonvested military pensions under the federal Uniformed Services Former Spouses’ Protection Act

Separate Property

Separate property is real and personal property either spouse owned before getting married or acquired during the marriage as a gift or inheritance. Separate property might also include assets acquired after the date of separation. Examples of separate property include:

  • A home owned before getting married
  • A gift one spouse received from the other for a birthday or holiday
  • Acquired property using separate property assets with the intent to keep it as separate property
  • Gifts received from a third party while married
  • Property only in one spouse’s name and acquired during the marriage but not used for the benefit of the other spouse
  • Inheritance received from family before or during the marriage
  • Property indicated as separate in a written contract, such as a post-nuptial agreement

Divisible Property

Divisible property is all personal and real property, such as:

  • Property, property rights, or any such portion received after the separation date but before the distribution date acquired by the efforts of either spouse while married but before the separation date, including bonuses, contractual rights, and commissions
  • Diminution and appreciation in marital property and divisible property value of the spouses occurring after the separation date and before the distribution date, except appreciation or diminution in value resulting from post-separation activities or a spouse’s actions not treated as divisible
  • Passive income from marital property received after the separation date, such as interest and dividends
  • Passive decreases and increases in financing charges and marital debt and interest related to any marital debt

Factors Contributing to the Division of Property in North Carolina

Typically, the court rules for equitable distribution when dividing property between divorcing spouses unless there’s a reason that equal division might not be equitable. That generally means a 50/50 split of the assets to both parties.

If you and your spouse can agree to the terms of property division, you have more control over the outcome. Coming to an amicable resolution allows both of you to walk away from the marriage with the assets you want the most or rightfully deserve.

However, if disputes arise and you have to settle the matter in court, the judge will review various factors to determine how to divide your property. These factors might include:

  • Age and health of each spouse
  • The necessity for the custodial parent to remain in the marital home if the divorcing spouses share young children
  • Income, property, and debts owned by both parties
  • Duration of the marriage
  • Obligations from previous marriages, such as child support for children shared with an ex
  • Any direct or indirect contribution, interest in, or equitable claim to acquiring marital property by the party without a title, including any joint effort or expenditures and services and contributions, or lack of effort as a parent, spouse, homemaker, or wage earner
  • The expectation of retirement, pension, or other deferred compensation rights considered to be separate property
  • Contributions one party made to the other for their education or career advancement
  • Tax consequences for each spouse, including state and federal tax consequences they would have incurred if they liquidated or sold the divisible and marital property on the valuation date
  • Direct contributions to increase the value of the separate property during the marriage
  • Difficulties evaluating any interest in a business or component asset, profession, or corporation and the economic desirability of retaining an interest or asset intact and free from interference or a claim by the other
  • Liquid or nonliquid character of all divisible and martial property
  • Actions by either spouse to preserve, maintain, expand, develop or neglect, waste, devalue, or convert the divisible or marital property, or both, after separation but before distribution

The judge can also use additional factors they deem appropriate to determine how to divide the property between you and your spouse in a way they believe is equitable or fair.

Contact Us

If you’re going through a divorce in North Carolina and want to learn about your legal options for the division of property, contact Marshall & Taylor PLLC immediately for a confidential consultation. We can review the circumstances of your divorce to determine what type of property you have and create a legal strategy to fight for the assets you want and deserve.

Call us at 919-833-1040 today to speak with one of our experienced and dedicated property division attorneys.

How Is Child Custody Decided in NC?

It’s typically best if a divorcing couple can agree to the terms of child custody outside of court. If you can’t seem to settle this matter, you will likely have to battle it out in court. It can become a contentious and stressful situation for both parties and for the children.

Unfortunately, when you need a judge to decide custody arrangements, you won’t have much control over the outcome. The judge will always consider the child’s best interests when determining who the child should live with and what the visitation schedule should be for the other parent.

Child Custody Laws in North Carolina

North Carolina statute § 50-13.1 through 50-13.9 outlines the procedures and guidelines for establishing child custody. Anyone claiming custody can pursue legal action by filing a complaint in court. The major parameters a judge might use to determine custody of a minor child are below.

Best Interests of the Child

One of the most crucial factors a judge will consider in a child custody case is what will be in the best interest of and provide for the best welfare of the child. Every judge is different and will use various parameters to determine what “best interests and welfare” actually means. It’s the judge’s opinion how much each factor contributes to their decision and whether they believe the child will be better off in the care of one parent over the other.

The judge can also consider anything that might affect the child’s development, whether mentally, physically, morally, or emotionally. A judge can look at multiple details, such as:

  • The age of the child
  • Whether the child favors living with one parent over the other
  • Each parent’s ability to provide for the child
  • Which party can offer a more stable and safe home
  • The amount of time each parent can spend with the child

Custody Rights of the Parents

Every parent has the right to custody of their minor child. Additionally, no one can interfere with those rights unless it is in the child’s best interest to do so.

During initial child custody proceedings, the natural parent is entitled to custody over a relative or third party unless there’s a question of whether the parent is fit to care for the child.

A judge could decide to award custody to a family member or third party if they believe it will benefit the child more than living with their parent. However, extreme circumstances must exist for a court to decide this. Most custody battles are often between the child’s biological parents instead of one parent and one non-parent.

State law does not favor one parent over the other. Although some states still choose the mother during custody cases, North Carolina does not prefer the mother more than the father in child custody cases.

However, some judges still believe mothers can provide better care to minor children than fathers. The judge assigned to your case will use their opinions and discretion to determine what they think will serve your child’s best interests.

The Child’s Wishes

Many states use straightforward factors to resolve child custody issues, such as each parent’s income, without hearing any preferences the child might have. However, in North Carolina, the court can also consider what the child wants.

As long as the child is of an age and mental capacity to exercise discretion, their wishes for child custody arrangements can hold considerable weight in the case. However, the judge does not have to rule in favor of the parent the child wants to reside with.

Discretion of the Court

A trial judge decides child custody issues instead of a jury. The judge can review physical evidence supporting one’s claims for custody, listen to witnesses, and consider various factors they believe are necessary to decide which parent should receive custody of the child.

You could benefit from learning everything you can about the judge working on your case. If you can gauge any predispositions the judge has and how they weigh their decisions in child custody cases before the trial begins, you could use that information to improve your chance of a favorable outcome.

Some counties give the parents some flexibility in choosing a judge to handle the case, while others assign a judge without allowing the parties to have a say in the matter.

Visitation in Child Custody Cases

Your judge could award a 50/50 split for custody. However, it is more likely they will award one parent primary custody and allow the other visitation. The same factors used to determine custody will apply when the judge decides on an appropriate visitation schedule.

The non-custodial parent, the parent the child does not live with, will have an opportunity to see their child on a visitation schedule. That can involve the child staying with them on the weekends or seeing them outside the home for a specified number of hours. Again, the judgment will depend on the best interests of the child.

Speak to an Experienced Child Custody Lawyer from Marshall & Taylor PLLC

Marshall & Taylor PLLC understands how emotionally-charged a child custody battle can be. If you and your spouse can’t resolve the matter yourselves, you have to take your case to court.

You will need a dedicated and knowledgeable lawyer by your side to fight for your rights as a parent. When you hire us, we will create a legal strategy to meet your needs and try to reach your desired result.

If you face a child custody dispute or want to modify a current agreement, do not hesitate to call Marshall & Taylor PLLC at 919-833-1040 for a consultation.

NC extends age of children allowed in foster care system to 21

The state of North Carolina has decided to expand the foster care system to provide aid for young adults as they transition into adulthood. Under the new law, people over the age of 18 can now be in the system until their 21st birthday.

After leaving foster care but realizing they are unable to make it on their own, young adults can reapply to be put into the system. This move was made possible by the approval of the North Carolina General Assembly in late 2016 and will take effect this year. According to Kevin Kelley, who is with the state Division of Child Welfare Services, state and federal funding provides aid to around 1,000 young adults.

Our attorneys at Marshall & Taylor PLLC provide legal services for our clients in Raleigh and other areas in North Carolina. We handle family law cases that involve child support and adoption, among others. Speak with a qualified member of our legal team by calling our offices today at 919-833-1040.

The divorced couple’s guide to Merry Christmas for the kiddos

If you’re a divorced couple, balancing time spent with the children this holiday season can be a bit tricky. However, if you follow these bits of advice, you will find yourself much more likely to be stress-free and having a merry Christmas after all.

Prioritize the welfare of you children and make the festivities about them. If you aim to make your children happy this Christmas, you and your ex-partner will put aside your differences to work towards a singular goal. This will foster a partnership between the two of you and get rid of the animosity and bickering, at least for a while.

Before making travel plans, if you have a custody order of agreement, plan very carefully around it so that it doesn’t overlap with your ex-partner’s schedule with the kids. However, if you don’t have a custody agreement and you insist on not being together for the holidays, maybe it’s time to consult a family law attorney on this matter.

Our attorneys at Marshall & Taylor PLLC will fight for fair alimony payments, fair divorce arrangements, and fair custodial rights. Seek our legal representation by calling our Raleigh offices today at 919-833-1040.

Kansas judge rules sperm donor does not owe child support to lesbian couple

William Marotta, a Kansas man turned sperm donor via the classified advertisements website Craigslist, was recently sued by the state for child support payments. Ultimately, he was found by a Kansas judge to not be liable to pay for child support to his biological daughter.

According to court documents, Marotta answered a Craigslist ad asking for sperm donation in exchange for $50. After making said donation, he signed a waiver that released him from parental rights over the child that his sperm might conceive.

Angela Bauer and Jennifer Schreiner, the lesbian couple who received the sperm and conceived a baby girl out of said donation, broke up in 2010. Schreiner, the birth mother, had to ask for federal financial assistance during that period. Around this time, the Kansas Department for Children and Families tried to offset the amount of her assistance by suing Marotta for child support.

We at Marshall & Taylor PLLC provide legal services in Raleigh or other areas in North Carolina, focusing on family law including child custody and child support disputes, among other things. Call our offices today at 919-833-1040 for more information regarding our services.

Cynthia Bailey says the hardest part of divorce is maintaining friendship with her ex

Reality television star Cynthia Bailey decided to divorce her husband, entrepreneur Peter Thomas, when their reality show, cable network Bravo’s The Real Housewives of Atlanta, was on hiatus for the season earlier this year.

According to a report, Bailey said the hardest part of undergoing a divorce is trying to remain civil with an ex-partner. She noted “a divorce is a very difficult thing to go through. It is spiritually and emotionally draining. The hardest part of this process for me has been trying to maintain a friendship and mutual respect for each other. We were friends before we were husband and wife. I just don’t want to lose that.” The divorce is coming after Thomas spent much of his time in Charlotte, North Carolina while she was living in Atlanta, Georgia.

Our attorneys at Marshall & Taylor PLLC provide legal services for our clients in Raleigh or another area of North Carolina. We handle family legal issues, such as legal separation, property division, and divorce, among others. Call our offices today at 919-833-1040 to speak with a qualified member of our legal team.

Mary J. Blige ‘moving’ on from divorce with Kendu Isaacs

Forty-five-year-old singer, songwriter, model, and record producer Mary Jane Blige said her “heart is okay” during the process of divorce from her husband of 12 years, Kendu Isaacs.

Blige filed for divorce from Isaacs in July 2016, citing irreconcilable differences as the reason and requesting that any spousal support to Isaacs be discontinued.

In an interview with a magazine about the divorce, Blige said, “The breaking point was when I kept asking over and over and over again for respect and to be respected. And it just seemed like I was beating a dead horse. I just wasn’t getting it back so if I can’t get respect in the relationship, then I have to move on and save myself.”

A report from ABC News stated that Isaacs has asked the courts to grant him $130,000 per month in spousal support from Blige who is unwilling to grant such a stipend, saying it’s important for a divorcing woman to keep a close eye on her finances.

Coming to the decision to divorce is always a difficult situation, even if it is for the best of both spouses. If you are undergoing a divorce in Raleigh or other areas in North Carolina, hire the legal services of our attorneys at Marshall & Taylor PLLC to ensure the smooth process of uncoupling by calling our offices today at 919-833-1040.

Child Custody Battle: The Latest on Brad Pitt, Angelina Jolie Divorce

Fifty-two-year-old actor and producer Brad Pitt will not let 41-year-old actress, film maker, and humanitarian Angelina Jolie Pitt have sole custody of their six children—15-year-old Maddox Chivan, 12-year-old Pax Thien, 11-year-old Zahara Marley, 10-year-old Shiloh Nouvel, and eight-year-old twins Vivienne Marcheline and Knox Leon—so passively.

According to documents obtained by entertainment news network, Pitt requested for joint legal and physical custody of their children on Friday, November 4 in Los Angeles, California.

Jolie filed for divorce in September after Pitt allegedly physically assaulted their eldest child, Maddox, during a private flight from France to the United States that on September 14, 2016. There have been implications that Pitt had been drinking at the time the apparent confrontation took place.

A divorce that includes child custody disputes can have a tremendous effect on the lives of your children, as well as your own. If you are currently embroiled in a particularly challenging family law issue in Raleigh or other areas in North Carolina, do not hesitate to seek the legal help of our attorneys at Marshall & Taylor PLLC by calling our offices today at 919-833-1040. Speak with a qualified member of our legal team today.

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