Category: Family Law Section

Congress Overrides Seifert Rule for Military Pension Division

By Mark E. Sullivan

The New Pension Division Rule

Without notice to North Carolina or consultation with its Congressional delegation, Congress enacted, on Dec. 23, 2016, the National Defense Authorization Act for Fiscal Year 2017 (NDAA 17) and overrode North Carolina’s Seifert[1] formula and N.C.G.S. § 50-20.1(a)(3) and (d) for dividing pensions, as applied to military retired pay. With North Carolina’s substantial military population – the third-largest in the country – this means that many lawyers need to know how to present testimony and evidence in contested pension division cases, as well as how to prepare a properly worded military pension division order (MPDO).

This new rule will require a new set of skills for such lawyers.

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Case Summaries

Family Law Section


By Rachel BeardA.T. Debnam, Daphne Edwards, Rebecca Poole, Jeff Russell and Jennifer Smith

Equitable Distribution; Appeal After Remand; Value Of Marital Residence; Law Of the Case

Lund v. Lund (Lund II), No. COA16-813 (March 21, 2017)

(related Court of Appeals case: Lund v. Lund, __ N.C. App. __, 779 S.E.2d 175 (2015) (Lund I)

Plaintiff-wife appeals from the trial court’s revised equitable distribution order entered after the Court of Appeals remanded for further findings of fact. The Court of Appeals affirmed the trial court’s decision.

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Custody Of Embryos In Event Of Divorce

By Amy Wallas Fox

For many couples, the only way to build their family is through assisted reproductive technologies (ART) including in vitro fertilization (IVF). With IVF, eggs are retrieved from a woman’s body and fertilized with sperm in the laboratory, creating embryos that are grown for several days outside the body. At that point, many embryos are cryopreserved prior to transfer to a woman’s uterus. What becomes of such embryos if they remain in storage at the time of progenitors’ divorce?

Reproductive clinics usually require couples to sign documents detailing disposition of their embryos in the event of their deaths and in the event of non-payment of storage fees. Clinics may also require agreement between the couple detailing what should happen if the couple divorces or one spouse is incapacitated while embryos are frozen. Options include procreation by one or both spouses, donation to medical research, or thaw and degeneration of the embryos. In California, New Jersey and Massachusetts it is required by statute that the fertility center mandate their patients to agree on disposition in a variety of circumstances, including divorce (See for example, California: Health and Safety Code 125315).

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Domestic Support Obligations In Bankruptcy

By Nick Brown

Experienced family lawyers are adept at helping their clients secure alimony, child support, property settlements and other financial relief. But what happens to these claims when the party obliged to make payments files bankruptcy?

This article takes a look at how domestic support obligations are treated in a bankruptcy case.  The article also highlights some common issues for dispute and ways to protect your client.

What Is a Domestic Support Obligation?

The “domestic support obligation” is a defined term in bankruptcy law, referring to a debt “in the nature of alimony, maintenance or support” that is owed to a current or former spouse or child. In order to qualify, the obligation must be established under a formal agreement, court order or state law.[1]

Common examples of domestic support obligations are alimony and child support. On the other hand, property divisions under equitable distribution orders typically do not qualify. In some instances, the nature of the claim is uncertain which could lead to litigation.

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The Chair’s Column: We have a blog? When did that happen?

Family Law Section

By Rebecca Watts

I am excited to announce the retirement of our newsletter.  Why is that exciting news?  Because with the retirement of the newsletter comes the birth of our blog!  Publication of a newsletter required months of work soliciting and collecting articles and case law reviews.  Because it could take months to put a new edition together, information in the newsletter was rarely “breaking news,” but the blog format allows us to more easily send interesting and timely content to section members.  As the blog gets going, you can expect to see articles written by section members, case law updates, information about section activities and events, and links to articles that may be of interest to section members.  Now that I have everyone’s attention, and speaking of section activities, let’s talk for a minute about how you can volunteer to serve on one of our section’s committees.  (OK, not the most elegant segue, but hopefully you will keep reading.)

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Case Summaries

Family Law Section

By Rebecca PooleJennifer Smith and Rachel Beard

Summaries of recent N.C. Court of Appeals Decisions

Rule 11 Sanctions

Caroline K. Grubbs v. Robert W. Grubbs Jr., Unpublished, No. COA16-129 (March 7, 2017)

Plaintiff and her trial counsel appealed from the trial court’s imposition of Rule 11 sanctions against them, denial of a Motion to Continue, and denial of a Motion for Reassignment of Judge. The Court of Appeals reversed in part, vacated in part, and remanded in part.

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Child Support Income Calculations and the Value Of ‘Maintenance’

Family Law Section

By Kelly Fairman

What exactly is income? Most people think about a Friday paycheck, or profit from a business once the expenses are paid. The North Carolina Child Support Guidelines cast a much wider net. Gross income is defined by a long and non-exclusive list of financial benefits. Specifically included in the definition of gross income is “maintenance received from persons other than the parties to the instant action.”

What is maintenance and how is it calculated? There are many different perspectives in the family law bar, and probably the judiciary, on this issue. One common misperception is that including the value of living expenses reduced by the contributions of a third party is “imputing” income. There are other arguments as to whether the contributions count as gifts, but this may have limited relevance, as both “maintenance” and “gifts” are included in gross income. Many practitioners read inclusion of these benefits as discretionary.

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