Jennifer Winstel: Welcome to the Purpose Unlocked podcast. We are your hosts. I'm Jennifer Winstel.
Leslie Kincheloe: And I'm Leslie Kincheloe.
Jennifer Winstel: We're with the Winstel Kincheloe team in Charlotte, North Carolina. You can reach us at jennifer.winstel @ubs.com. We are financial advisors with UBS, one of the largest wealth managers in the world.
Leslie Kincheloe: We are so excited to have meaningful conversations with a variety of guests. We'll be exploring their passions in business, entrepreneurship and philanthropy.
Jennifer Winstel: Our mission is to bring purpose to life beyond the numbers. Welcome, Claire, to the Purpose Unlocked podcast. We're thrilled to have you join us today.
Claire Samuels: Thank you so much for having me. I'm excited to be here.
Jennifer Winstel: So today we're talking about, divorce. Which is a tricky subject. But what we want to get into is kind of how do we. And I love your website because your website says something I think that is so poignant and beautiful at the coming divorce, a holistic approach to divorce that allows you to reorganize, restructure and redefine your family with dignity and grace.
Jennifer Winstel: I love that.
Claire Samuels: Thank you.
Jennifer Winstel: So, today's topic and we're going to do this as a series. So, we appreciate your willingness to be our guest in this three-part series. Absolutely. Yes. Thanks. And today is legal and financial literacy. So a lot to cover in this area. But I think it'd help our listeners to understand a little about your background and your practice.
Jennifer Winstel: And then we'll jump right in.
Claire Samuels: Okay. Sure. Thanks. Thanks again for having me. Yes. So, I've been practicing family law now in Charlotte since 2007. And, before I opened my own firm five years ago, I was at a large firm doing a lot of complex litigation, high conflict litigation. And when I decided to open my own firm five years ago, the purpose behind that was really on trying to help clients, really with the education piece and the tools to understand all the different options that are available to them.
Claire Samuels: When selecting how they want to move forward in their divorce. Because I think that there's a lot of misinformation out there or, a lot of people, you know, remember their parents’ divorce or a friend's divorce or, and it doesn't have to be, this horrific battleground, that we're all pretty familiar with from the movies or, like I said, our parents or something like that.
Jennifer Winstel: I appreciate that, because when Leslie and I were talking about how to approach this podcast, what we recognize is this doesn't affect everyone, but it probably affects somebody's family member or neighbor friend. So, the information we're talking about can help people in our lives, whether it directly impacts us. We know it impacts those around us.
Claire Samuels: Absolutely.
Jennifer Winstel: So, I appreciate your willingness to be an educator today. Sure. And we'll just we'll jump right in. Right. Okay. So, again, sticking with the literacy, the legal literacy, I should say. Let's start with the difference between mediation litigation. And I love how you said everything in between.
Claire Samuels: Sure. Yeah. So, you have your traditional adversarial process, a litigation format, where, you know, both parties go hire lawyers or go it alone, but they come out of the gate filing a lawsuit. And, then before you know it, you're entangled in the legal process, trying to navigate that. And it's that it's a very adversarial system.
Claire Samuels: It's not, a system that, you know, in all honesty, was designed to resolve family conflict. It was designed to help business’s part ways or resolve commercial disputes. And what we found is that there are other ways, there are better ways, to help families resolve these disputes. Outside of a system that really wasn't really wasn't designed for that purpose and a traditional litigation situation.
Claire Samuels: I mean, you are using, adversarial tactics that pit people against each other. Focused on the past, focused on who's at fault. Focus on finding a winner and a loser. And so, in a process that's designed that way, you have that is the point of the game, is to, you know, showmanship and gamesmanship and play games and, you know, trying to outmaneuver, the other side.
Claire Samuels: But it's very taxing on families, both from a financial and an emotional standpoint. Mediation, on the other hand, a lot of people participate in mediation, whether they've filed a lawsuit or not, filed a lawsuit. Mediation is another form of alternative dispute resolution, where people can work with attorneys and also engage a mediator who is a neutral, really a facilitator of sorts.
Claire Samuels: And that mediator’s goal is to help the parties come together and find a resolution. The difference there is they're not providing legal advice. The mediator is not providing legal advice of mediators, not making any decisions. It's really the parties working with the help of their legal counsel, to hopefully reach a resolution outside of the court process.
Jennifer Winstel: So, do you have recommendations on how somebody would find a lawyer or a mediator? Like, what is that first or second step they would take?
Claire Samuels: Sure. I mean, I definitely think speaking to if you feel comfortable, if you have a trusted person that you can speak to, and most of us know someone who has gone through a divorce, you're going to be spending a lot of time with your lawyer. It's really important that you have a level of trust and good communication.
Claire Samuels: And you can go and schedule consultations with 1 or 2 lawyers to see who might be a good fit. But speaking to friends or neighbors or someone that you trust to see who they've worked with is always, I think, an excellent resource. I happen to be a member of the Charlotte Collaborative Divorce Professionals Network. And we have a website and that website, and I know we'll talk about collaborative divorce as a process, but that, website has a list of collaborative attorneys, child specialist, collaborative divorce coaches, collaborative divorce.
Claire Samuels: That website has a list of collaboratively trained professionals. And that's also a really great resource to be able to go and find a list of attorneys who could help you through that process.
Jennifer Winstel: Perfect. Is there such thing as a do it yourself divorce? Does that exist?
Claire Samuels: It does exist. You know, there's actually I mean, there are people who can sit down at their kitchen table and figure things out, and not everything has to be so complex. There are websites you can go to now and do DIY stuff. I caution people because just like anything else you can, you can find a DIY, DIY solution for just about anything nowadays, or ChatGPT or AI or something for.
Claire Samuels: But those can seem like a great idea and an inexpensive way to approach the process. Can and I have seen on more than one occasion, it turned into an expensive fix down the road because there will be something that, you didn't think of or something that wasn't addressed. But you might have seen something that closes doors on options that would have otherwise been available to you.
Claire Samuels: So, you know, certainly if you have the ability to have a conversation, with your spouse and to at least figure some things out, that's great. And there are professionals who aren't going to disrupt the progress that you've made. But we'll be giving you the legal advice just so you're making informed decisions.
Jennifer Winstel: I think that makes sense because of the complexity of financial assets and tax implications. I mean, it can get complicated and legal advice. I would think financially wise to invest in.
Claire Samuels: Well, and it's both and, you know, talking to you know, as lawyers, I always tell people they need to speak to someone like you that, you know, I'm not giving tax and financial advice, but it's really important to think about, especially if you're selling a home. What are the capital gains taxes? You know, other assets that people don't think about like, you know, pass it like that, pass that, carry forward.
Claire Samuels: Sorry. So, like the tax loss carryforwards that might be something that's on a previously filed joint return, talking about how you're going to deal with those things. So those just aren't the kinds of things that are top of mind for most people who are just thinking about the basics, the house, the bank account. Right. Right. They're not thinking about those other implications or how you might deal with different assets of different classes and things like that.
Jennifer Winstel: That makes sense. So, what do you recommend people consider before they actually begin the filing process?
Claire Samuels: So, what's interesting, and I think, something that, you know, people every state is different. But North Carolina, for example, you can't even file a complaint for divorce until you've been physically separated for a year. So, you're not filing anything, but that doesn't mean that, you know, you wouldn't want to be speaking to an attorney or figuring out and that you can't resolve the financial issues, custody issues, spousal support, and child support issues.
Claire Samuels: You can start working those out long before you can actually file the divorce complaint. And in fact, it's important to start doing that because there are certain claims that once your divorce is actually entered, you would not be able to file. So, you want to start addressing those issues long before you're actually filing the true divorce complaint. And to resolve those issues, you might not ever have to file a lawsuit.
Claire Samuels: Depending on how you resolve issues, you might decide to capture all of the terms that you've agreed upon and what we call, contract of separation and property settlement agreement and whatever else is in that agreement, whether it's spousal support or child support or custody or what have you. Sometimes we will file a vanilla lawsuit. Just to capture things.
Claire Samuels: Even agreed upon terms just for child support and child custody. But every situation is different. And so, it really may be that you don't have to file anything but things to think about, you know, or just, you know, who is going to be on, on your team. You know, obviously attorneys. Do you need mental health professionals? Do you need financial advisors?
Claire Samuels: Do you need child specialists? Do you need, coaches to work with you on communication? And so just kind of figuring out what team you need to be put in place. I think is where you start having that conversation, in terms of when you're meeting with your lawyer.
Leslie Kincheloe: And you put together a group of people that you like to recommend to your clients, isn't that right, a curated.
Claire Samuels: Group? Yeah. So, I, I always I've always loved connecting, people. And I've found that even before I started my own firm, that was happening organically. I would be like, you should go see Jen and Leslie, or you should go, you know, see this therapist or, you know, and making those kinds of recommendations.
Claire Samuels: And so, I thought it would be really wonderful when I started my own firm, to do something a little different and to have a curated community of helping professionals who were in, you know, obviously they're wonderful professionals in Charlotte. We're so fortunate to have a wealth of really amazing professionals to help people going through divorce, but just also including some of the professions that you don't traditionally think of.
Claire Samuels: Like you might want to consult with a mortgage broker to understand what kind of mortgage you're going to be able to afford. If we think the settlement's going this way, or you might want to, you know, change something about your lifestyle or how you're taking care of yourself and just all the little things that people might need when they're going through a divorce and a community of helping professionals who I trust, to take care of my clients when they're at their most vulnerable points.
Claire Samuels:
Leslie Kincheloe: I love that. Yeah. Should we just take a step back and talk about collaborative divorce and maybe just define that and explain.
Claire Samuels: Sure. Absolutely. So, the collaborative divorce process is really, a process that is goal oriented and primarily focused on interest-based negotiations. Both parties hire and have an independent, collaboratively trained attorney. So, one of the misconceptions is that in a collaborative process, you're not going to be participating in negotiations or that, it's some kind of kumbaya hair braiding process.
Claire Samuels: And then and that is and that is and that is not the case at all. Both parties have attorneys who are looking out and making sure that legally they are protected. And all the issues that have to be addressed in any divorce are being addressed. But the difference is that it's a more, it's focused more on present problem solving as opposed to historical finger pointing.
Claire Samuels: Yeah. So present problem solving with a goal towards resolving these issues. And that's what we were talking about in terms of my website and looking forward to okay. We understand this has happened. And it's not it's not a process where you're forgetting what was, you know, in the background, but you've heard people say, I mean, if you're driving a car, you have a windshield and you have a rearview mirror and you need both, right?
Claire Samuels: It's not that they're not important, but if you have to pick one, you've got to be able to see out of the front and where you're going. And collaborative is really more focused on where are we going as a family. How can we take what is happening and what do we both need? What do our children need? How can we preserve family finances?
Claire Samuels: Emotional stability for our children and be in a situation where we can, focus on that and put them at the center and not in the middle, you know, and so really trying to pull together a team that works on that with the client. So, you in a series of private, confidential, meetings and negotiations, working through and solving those problems that need to be solved and coming up with an agreement to resolve all the issues.
Leslie Kincheloe: Well, when we look at equitable distribution and financial assets, as we sort of talk about those things, where do you recommend your clients get started? Like, should they start trying to make a list themselves, or how do you.
Claire Samuels: So, one of the things that I do with my clients, and I don't think this is probably unique to my practice, is I, I start with sending them some homework of financial documents. I would like them to start gathering. And it's okay if you're the spouse that doesn't have access to them. Obviously, we will. We will figure that out depending on the process that we're in.
Claire Samuels: But to start pulling together, the documents that they do have, bank accounts, tax returns, investment, retirement accounts, just things of that nature so we can start getting an idea of what the financial landscape looks like. And then we work together with our clients to start building a chart of assets.
Leslie Kincheloe: And so how do you determine what's marketable marital property and what's separate property. When does that get determined.
Claire Samuels: And yeah, so marital property the presumption you know everything's a presumption. And we're looking at, you know, in the state of North Carolina at least our statutes in terms of marital property, marital property, the presumption is, is that anything that was accumulated during your marriage and before you all get separated is marital property, regardless of whose name it's, so the idea is that what you are building, what you are accumulating during the marriage is a marital partnership is marital assets.
Claire Samuels: There are exceptions, separate property, things that are gifts to you specifically, perhaps from a relative or, inheritance. There’re things that you can do, you know, unknowingly, of course, that you can convert separate assets into marital assets. So, it can it's not as clear cut as that, but the but the presumption is, is if it was accumulated during the marriage and prior to the date of separation, it's marital property.
Claire Samuels: If it's something that you came to the marriage with and preserved separately, or that you acquire after the date of separation based on postdate of separation activity, then that would be your separate property. And so that's at a high level. That's what we're talking about. Well, it is not married on separate.
Leslie Kincheloe: Is the valuation of those items done at the date of separation, or is it after that at the time of divorce, when is it actually valid.
Claire Samuels: So, the date of separation is certainly a line in the sand, in terms of looking at the value of assets. But as you all know, things sitting in your retirement account, there's going to be the retirement accounts, the easiest, you know, asset to kind of give an example, a traditional 401 K. You know, I have a value of my 401 K as of the date of separation.
Claire Samuels: And then perhaps we're not actually distributing or dividing that amount until a year later. If I've continued to work and make contributions to that. 401k those contributions that I've made after the date of separation, based on my continued work with my employer, those would be active contributions and not considered part of the marital state. But the passive growth on the funds or the or the passive decrease, you know, depending on how our market is that way.
Claire Samuels: The passive increase or decrease on the funds that were in that account on the date of separation, we will look at that as what's called the divisible estate but can get treated as a marital asset. So, you are sharing in that passive increase and decrease also like the value of your home. So, we do use you have to value North Carolina.
Claire Samuels: Our statutes require you to value assets on the date of separation, but then you will also look at them closer in time, at the date of distribution, depending on where you are in the process and how far and how much time passes between the data, say it's very different. If you're talking about data separation and you resolve your all of your issues in a couple of months outside of the legal process, outside of the courtroom process, and you're doing that in a couple months, versus if you're in a litigation scenario where it could be going on for, well over a year.
Claire Samuels: Yeah.
Leslie Kincheloe: Well, and we've got a list of things to be thinking about that we'll post, so that our listeners can look at that if they need to as a starting point.
Claire Samuels: Great. Yeah. Wonderful.
Jennifer Winstel: So, we hear a lot about why fair is not equal. Can you elaborate on that. What does that mean to you? I hear that a lot across those that are going through the process.
Claire Samuels: Sure. I mean, and fair is such a subjective term, right in the eye of the beholder. I mean, there is when we're talking about equitable distribution, there is a presumption, again, in North Carolina that equitable means equal. But then there's a whole list of factors the court can consider. In not doing something 50, 50 or equal. You know, when you're talking about length of marriage or what one spouse get, you know, someone who is a primary breadwinner, there's this whole list of factors that can come into play and be considered where it's not always just chop, chop 50 and 50, but, you know, equitable and equal and fair.
Claire Samuels: I mean, it kind of goes back like goes back to us all being children, right? Like if they get a cookie, then I should get a cookie, because that's fair. We should both get the same thing. And that's not always how it shakes out. Yeah.
Jennifer Winstel: Just switching gears a little bit. I know there are a lot of hidden costs with divorce, health insurance gaps, post-divorce filing of taxes, moving expenses, double rent. Do you factor those things in when negotiating, a split of assets or a settlement? Or are those things that the client going through the divorce should consider in kind of a spreadsheet and account for later on?
Claire Samuels: Well, and I think that that's where it's important to pull professionals in who we're going to help you think about those issues. Because right now, if you're a dependent spouse on your spouse's insurance, that's quite a bit, you know, it's less expensive than if you're going to have to go out and get your, plan. So certainly when we're looking, budget and support and having those kinds of conversations, we're looking at, okay, well, what will be the cost or trying to get some estimates about what will be the cost for you to go get your own health insurance if that spouse isn't going to, you know, be in a situation where they're
Claire Samuels: going to have a job where health insurance benefits are included. Definitely looking at all of those issues or in terms of, well, who is going to claim the dependency exemption for XYZ, whether it's a mortgage interest deduction or their children? And having those kinds of conversations certainly can shape how other components get resolved that help.
Jennifer Winstel: And maybe we should just qualify what is equitable distribution for the listeners, for those who aren't familiar with that term, sure. And then further maintenance versus alimony versus support. So those are all terms we hear. But there's clearly differences and what that means in the settlement.
Claire Samuels: Sure. So equitable distribution. I always like thinking about my best friend when I was in law school and she was not and she was just like lawyers just put fancy words on things. So the rest of us don't know what we're talking about. But, anyway. But equitable distribution, is really just a fancy term for property division and figuring out how to look at the marital estate and what has been accumulated during the marriage and where it gets distributed.
Claire Samuels: So that's equitable distribution. Okay. It's really all property. Property division or distribution okay.
Jennifer Winstel: Versus maintenance alimony and support.
Claire Samuels: Right. So, maintenance alimony and supporter. Yeah, they're all different words for the same. So spousal support in in again in North Carolina you have pay separation support which is a temporary form of spousal support. And then you have alimony, which is the longer term, not the temporary Band-Aid form of spousal support. Maintenance can be another term that gets used and other jurisdictions to talk about support for a spouse, a dependent spouse.
Claire Samuels: And, and you know, the things that we look at, you have a dependent and a supporting spouse under our North Carolina language. And, you know, there you look at what our reasonable needs and expenses, what was the accustomed standard of living during the marriage? Does what's, you know, is one spouse, quote unquote, dependent on the other? In terms of can they maintain their accustomed standard of living and meet their reasonable needs, expenses without help from the other spouse?
Claire Samuels: And so, we put together, you know, historic budgets to look at what was families spending, what was individual spending. What do you need, you know, in terms of meeting your monthly needs and expenses? And do you have the ability to meet all of those financial needs when you're in with your own income? Or do you need, is there a gap that needs to be filled, with support from another spouse?
Leslie Kincheloe: So those are kind of income generating types of needs as opposed to the equitable distribution, which is really focused on sort of fixed assets, if you will, or things that have already been invested in.
Claire Samuels: That's right. Yeah. I mean, in terms of asset distribution versus right, what are your income versus losses and the income available to both spouses, for purposes of meeting those ongoing expenses? Yes.
Jennifer Winstel: Well, as we wrap up, our first part of this series, is there anything else you'd like to leave with our listeners? We're going to put some materials on your website and our website. Yes. We have an asset inventory worksheet. And I know you have some materials that are helpful as people consider or embark on the process.
Jennifer Winstel: Any last words of advice or wisdom that you would share today?
Claire Samuels: I mean, I think in terms of, you know, going on and really like the first step in the process, or do you think is giving some consideration to what kind of process you want to have, what you would like your divorce to look like? And a lot of people will start going down the path of my spouse will never agree to this.
Claire Samuels: They're so difficult. We could never resolve things, outside of court and thinking that courts are the only available option. You wouldn't be alone in that situation. Most people think that there's a lot of controversy and emotion, or you probably otherwise wouldn't be getting divorced. Right? But many, many people are able to resolve their conflict outside of a divorce, outside of a traditional litigation setting.
Claire Samuels: And so thinking about what process you want, going and meeting with an attorney and asking the questions, asking them to explain to you the processes that are available, because in that initial consultation, they'll be able to go into a more in-depth conversation than we just had about how the different processes work. Is that process going to be a good fit for you based on what you're sharing about your situation and your kids or your spouse or what have you?
Claire Samuels: And just really trying to think about what is the legacy, that you want to live and what you want your life to look like as you move through this process and into the next chapter and seeing if you can find professionals who will work with you to help you achieve it.
Jennifer Winstel: Great. Thank you. Perfect, Claire, we appreciate your time. Thank you. Claire. We look forward to part two.
Claire Samuels: Okay, miniseries. I'm looking forward to it too.
Jennifer Winstel: Thank you.