Helping Families in Challenging Situations Find Healthy Solutions

The Bencher—September/October 2018

By Theresa E. Viera, Esquire

One day is never the same as the next in the practice of family law. With the ever-evolving definition of what it means to be a family or a parent or to be in a relationship, family law is constantly attempting to stay ahead of the game. The courts consistently deal with new societal practices that state and federal legislatures have yet to define, so family law practitioners find themselves regularly breaking new ground and overlapping with other areas of legal practice, such as estate planning. Every case is different, but there are some unifying topics and overarching best practices to help each family find its own path forward.

Let’s begin with money.

A typical topic for family law practitioners is financial support for children or a spouse. In calculating the financial support owed to a spouse or on behalf of a child, it is well understood that you must first determine the income of the supporting spouse or obligor. Income determination was an easy computation when individuals had one source of income from an employer. Generally, this number is easy to find on a paystub or W-2 tax form. But with today’s technology that allows individuals to earn income remotely, combined with the need for increased income due to the rising cost of living in many areas, there are many times when income encompasses more than just a paystub from one source. For example, does the obligor have an eBay account through which he sells antique furniture? Does he have an Instagram account through which he sells his photography? Are these forms of income factored in for spousal support and child support?

Aside from sources, what is the currency? Most business practices trade services and goods for the U.S. dollar. But what about bitcoin? If a person buys and sells items or services on internet platforms using bitcoin, does that count as income? In my state, the North Carolina Child Support Guidelines define income as “a parent’s actual gross income from any source … [including] operation of a business.” If bitcoin can be income for financial support purposes, what is its value? How does the court decide when to value bitcoin? Unlike other currencies, the value of bitcoin has increased and decreased sharply over the past year. In 2017, its price climbed from below $1,000 to above $19,000. Is an average used for income purposes? Or does bitcoin only become income and valued when converted to the U.S. dollar? What if the amount is never converted?

Are you keeping up? We have not even broached the income computation of the obligee or dependent spouse. Nor have we delved into the various factors that influence the calculation for child support or spousal support. In North Carolina, practitioners are fortunate to have a child support calculation established by statute to compute the obligation when the combined income of the parents is at or below $25,000 per month. However, practitioners in North Carolina are not as lucky when it comes to the computation of spousal support. Rather, the court exercises discretion in determining the amount, duration, and manner of payment of alimony. In theory, this means a judge could award alimony to be paid in bitcoin, though we’ve not seen that yet.

One of the spousal support factors that a court in North Carolina uses in its discretion is the “relative earnings and earning capacities of the spouses.” With the increase of equal rights over the past five decades, women have gained greater earning capacities than women of previous generations. Laws in the United States have transformed to permit women to own and control property, earn and manage their income, and be able to keep said earnings separate and apart from any control by their husbands. Title IX of the U.S. Education Amendments of 1972—renamed the Patsy Mink Equal Opportunity in Education Act in 2002—states in part, “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance.” Higher education equals on average a higher income. Women currently earn the majority of degrees: 57 percent of bachelor’s degrees, 60 percent of master’s degrees, and 51 percent of doctoral degrees, according to Forbes. Furthermore, although the wage gap between men and women still exists, the trend continues to shift toward equality. The Pew Research Center reports that compared with the median hourly earnings of men between the ages of 25 to 34, the earnings of women have increased from 67 percent in 1980 to 89 percent in 2017. When you consider how difficult it was for a woman to purchase real estate or even get a credit card in the 1970s and earlier, women’s economic power has come a long way. Long story short: A court’s analysis of a woman’s earning ability gives rise to a much different picture today than it did 50 years ago.

Let’s shift now to how marital property is divided upon separation or divorce. The laws defining the distribution of the marital estate can vary significantly state to state. One of the notable differences is whether the state’s law uses equitable distribution or community property. A simple but major difference between the two forms of law is that in equitable distribution jurisdictions, a judge has a bit more discretion on determining what is equitable and is able to consider a family’s unique situation and adjust the final distribution as a result.

North Carolina is an equitable distribution jurisdiction, which sometimes works in our clients’ favor and sometimes not. With more factors considered, the final distribution can be more complicated than a simple math equation of 50/50. Notably and admirably, such laws provide flexibility in the law to find necessary protections for children and the relevant parties. For example, a judge can award possession of a residence to a spouse that cannot afford the debt related to the house if said spouse was a stay-at-home parent providing for the daily needs of the minor children. Possession may be granted until the children reach the age of majority and have graduated from high school; thereafter, the residence is sold and proceeds divided in an equitable fashion.

Still not too difficult? Consider this: It’s not unusual to regard a residence bought during the marriage as marital property subject to distribution—but what about pets? While people may consider them members of their family, they are property under most laws. Or even more complicated, what about an embryo? Frozen sperm? A frozen unfertilized egg? Under current laws, an embryo is technically not a child. Pursuant to North Carolina General Statute §50A-102, a child is defined as “an individual who has not attained 18 years of age.” Will the court find distribution of such precious biological matter appropriate and “equitable” should a couple divorce? For example, one court in Pennsylvania was faced with the difficult decision to award embryos to the wife. It was found that she was a cancer survivor and had no other means of procreation with her own genetic material. (Reber v. Reiss (Pa. Super. Ct. 2012) 42 A.3d 1131).

This brings up a real concern for our clients: Do they really want a stranger, albeit a most likely intelligent and respectable stranger, determining the future of their genetic material? I advise my clients not to let their genetic material be the test case for North Carolina courts. Before freezing embryos, eggs, or sperm,  they should work with their partner or spouse to agree upon the disposition of said genetic material in the event of death or divorce by formalizing said agreement in writing (preferably not on a napkin, but on a typed and notarized document).

When I tell people I am a family law attorney, their thoughts often jump to divorce. But because of how the absolute divorce laws work in North Carolina, divorce is not where I spend most, or even a notable amount, of my time practicing law. Rather, I spend much of my time helping parents in child-custody disputes. Earlier, I went over the definition of a “child.” What is the definition of a “parent” under North Carolina law? The answer may not be as simple as it appears. It is true that if a woman and a man procreate, the result—confirmable by a simple DNA test—is a child to which they are defined as the parents. However, that is only one way a child is created in today’s technologically advanced world.

In 1977, a baby was conceived by in vitro fertilization (IVF) for the first time. IVF is a process by which the eggs are extracted from a female, sperm are obtained from a male donor or donors, and the egg and sperm are combined in a laboratory. The embryo is then transferred to a uterus. It is not only possible, but also relatively commonplace, to have the biological material of more than two people involved in the conception process. For example: egg from woman 1 combined with sperm of man 1 could be transferred to the uterus of woman 2. Who are the parents? Can you make a determination with these facts alone?

Scenario 1: Woman 1 is an anonymous egg donor, man 1 is the husband, and woman 2 is the wife. Who are the parents? If woman 1 donated her eggs through a fertility program, it is likely that she already waived any legal or parental rights she had to her eggs.

Scenario 2: Woman 1 is the wife, man 1 is anonymous sperm donor, and woman 2 is a surrogate. The surrogate was in essence hired by the wife and husband to carry to term the embryo created between the wife and the sperm donor. Again, if man 1 donated his sperm through a fertility program, it is likely that he already waived any legal or parental rights he had. How about the surrogate birth mother? Does she have rights or should she have rights equal to a parent?

Scenario 3 (because yes, things can get even more interesting): A same-sex male couple decides to have a child. Woman 1 is an anonymous egg donor, both of the men in the couple donate their sperm to be used in IVF, and woman 2 is a surrogate. In addition to the concerns noted earlier, what happens if the men decide never to conduct a DNA test to determine who is the biological parent…until they decide to divorce when the child is 12 years old? Who are the parents? Does the law defining “parent” in your jurisdiction match who you believe should be the parents?

Once the term “parent” is clarified, the impact ripples beyond the boundaries of family law. Inheritance and estate laws then come into the picture upon contemplation of death in the family. Social security and disability laws are also affected should a parent or family qualify.

Investigating the answers to some of these tricky questions is not only interesting but necessary for the protection of the legal rights of our clients. The efforts of the American Inns of Court and my Inn, the Chief Justice William H. Bobbitt American Inn of Court, provide the necessary platform upon which to open this dialogue. Across practice areas, I have observed attorneys collaborate, disseminate, and push the conversation forward.

Where the law is silent or absent, it is up to legal practitioners to pave the way for the future of families in our communities and country. The answers to finding healthy solutions for families and children in unhealthy situations are not always clear; however, in lieu of waiting for statute revisions tomorrow or case law decisions years from now, collaboration among practitioners is necessary to protect families today.

Theresa E. Viera, Esquire, is an attorney with Sodoma Law in Charlotte, North Carolina. She is an Associate member of the Chief Justice William H. Bobbitt American Inn of Court.

© 2018 Theresa E. Viera, Esquire. This article was originally published in the September/October 2018 issue of The Bencher, a bi-monthly publication of the American Inns of Court. This article, in full or in part, may not be copied, reprinted, distributed, or stored electronically in any form without the written consent of the American Inns of Court.