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When Will the Judge Make a Ruling in my Case?

When Will the Judge Make a Ruling in my Case?

When Will the Judge Make a Ruling in my Case? By Amy A. Edwards This question comes up all the time. The short answer is that the judge makes a decision in your case whenever he or she makes a decision in your case. Attorneys don’t have the authority to push judges to make decisions in cases. The judges are in control of what happens in court, which includes the time it takes to do things. After a trial, the judge makes a decision on what is disputed in your case, which is called a ruling. The judge signs a written order and the clerk of court “enters” it with an ink stamp that reflects the date. On that date, it becomes legally effective or entered. In the Beginning During your trial, also known as a hearing, the judge probably took notes and/or admitted trial exhibits into evidence. Typical evidence in a child support case for a self-employed person includes three years of personal and corporate tax returns, bank records, credit card statements, invoices and other documents that prove what the monthly business and personal expenses. Then, consider the stack of evidence the judge has from all of the trials that particular week or two, and you can begin to understand why the judge’s ruling may take so long. After the trial is over, the judge will also need to review his or her notes and sometimes obtain a recording of the trial if it was complex or if enough time has passed that it is no longer fresh in the judge’s mind.  Behind the Scenes The judge’s day job is to sit in court listing to trials, which leaves only limited unscheduled time to work on a ruling in your case. Judges have a few random days of office time that is scheduled, but not many. Often, the free time a judge might have to work on your case is when some other case that was scheduled for a trial settles or gets continued to a later date. If a two-day trial was scheduled and the parties sign an agreement three hours into it, the rest of the two days might be available to work on your case. Or, the rest of that time might be used to hear a trial that had been scheduled on the waiting list as a “backup” case so no court time is wasted. There is a severe shortage of judges, and the...

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Keeping Secrets: the Attorney Client Privilege in North Carolina

Keeping Secrets: the Attorney Client Privilege in North Carolina

Keeping Secrets: the Attorney Client Privilege in NC By Amy A. Edwards When someone is served with a subpoena to testify in court, he or she generally must go to the courthouse and testify in open court at the risk of being held in contempt of court, i.e., incarcerated, for failure to do so. And the witness must answer all of the questions from the attorneys while on the witness stand. There are only a handful of times when the court says a witness can’t be forced to testify, or when a witness may testify only about certain things. One of these times is when you tell your lawyer something that qualifies as attorney-client privilege (ACP). A privilege is a special right, the ability to avoid testifying, or testifying about a certain subject. North Carolina Privilege North Carolina has privileges for communications with physicians, nurses, clergy, psychologists, school counselors, licensed marital and family therapists, social workers, counselors, optometrists, peer support group counselors, agents of rape crisis centers and domestic violence programs and limited protection for journalists and spouses. [1] One case explains that the ACP is “. . . an established rule . . . that confidential communications made to an attorney in his professional capacity by his client are privileged, and the attorney cannot be compelled to testify to them unless his client consents.” [2] The Policy Behind It ACP fosters crucial trust between the client and the attorney. It is a time-honored tradition that encourages people to be honest with their attorneys so that the attorney can effectively protect that person’s civil rights. Otherwise, the attorney would potentially have to testify about conversations with his or her client. This is particularly important when a client who is accused of a crime faces the threat of incarceration or even death if there are pending capital murder charges. What’s Required to be ACP? There are five requirements for communication to be protected by ACP. [3] The first is that the attorney must have the relationship of attorney and client when the communication is made. If you are talking with your cousin, who happens to be an attorney, about your other cousin’s new boyfriend, that is not a privileged communication. Second, the conversation must be made in confidence. Generally, the only people who can be present during the conversation are the attorney and the client. Someone else’s presence while communicating...

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Putting Humpty Dumpty Together Again: Breach of Contract

Putting Humpty Dumpty Together Again: Breach of Contract

Putting Humpty Dumpty Together Again: Breach of Contract By Amy A. Edwards When they separate after being in a relationship, people who are or were married usually resolve their disputes one of two ways, by obtaining a court order or by a contract usually but not always called a separation agreement. Breach of Contract Failure to do what was promised in a contract is a violation of it, called a breach of contract. This article assumes a valid contract has actually been made, and it doesn’t look at what defenses someone might have if he or she is sued for breach of contract. If you enter into a contract, you are legally obligated to perform accordingly. Contracts are usually enforced by money damages. Like Humpty Dumpty, the court tries to make the innocent party “whole” again, restored to the position they were in before the other person breached the contract. The law gives the person a legal remedy, they are then finished with the matter, and both are off to live happily ever after. No Adequate Remedy at Law Now consider the person in a family law situation. If you are entitled to child support but your ex won’t pay, a legal remedy to enforce the contract would mean that each month after no payment is made, you would sue your ex, have a trial to get a judge to make a ruling, and execute on a judgment for money owed. Needless to say, this legal remedy would be repetitive, expensive and time-consuming. The entire point of child support is to make sure the child is given shelter, food, transportation, etc. Going to court every month would give a completely opposite result. This means the law is substituted with what is called equity. Remedy at Equity When the legal remedy isn’t enough to make you whole again, the law is supplemented by equity. Family law is one of the few times when the court has the ability to rely on equity, which is based on justice and what is right and wrong, instead of relying just on a written statute. The distinction between the law and equity is also noticeable when you see it used as an attorney at law. Property claims for marital property are courts at equity because the judge must divide marital property equally “unless the court determines that an equal division is not equitable.” NC...

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The Live-in Girlfriend’s Income & Expenses in Alimony Cases

The Live-in Girlfriend’s Income & Expenses in Alimony Cases

The Live-in Girlfriend’s Income & Expenses in Alimony Cases By Amy A. Edwards Unlike child support, North Carolina does not use any Guidelines or formula when deciding what amount alimony should be. Instead, the judge decides whether the low-earning spouse is entitled to alimony, and if so, whether the higher-earning spouse can afford to pay it. All of these decisions are made in the discretion of the judge. If you lined up ten judges to hear the same alimony case, you would very likely have ten different rulings. This is not only frustrating for the parties, but also for attorneys who don’t have the benefit of a crystal ball. What’s the Deal with Alimony? By state law, the judge must decide what each person’s income is, and what each person’s reasonable living expenses are. The judge reviews a budget prepared by each party called a financial affidavit, about which each party testifies under oath. The financially dependent spouse must prove more reasonable living expenses than income, which is a financial shortfall. The supporting spouse tries to show expenses and income so as to avoid showing a surplus of money. In other words, the lower-earning spouse wants to show a deficit, and the higher-earning spouse wants to avoid having a surplus of money left over after paying living expenses. A financial surplus is money that can be used for paying alimony. Frequently, the expenses each party asserts are quite different from what a judge decides is reasonable. For example, a spouse who earns $26,000 per year will likely have a hard time justifying a $700 per month vehicle payment as a reasonable living expense. Courts often expect both parties to tighten their belts after a separation. The judge in that example might think the vehicle could be sold or traded in exchange for a vehicle with a $350 per month payment. In that event, the judge would credit that spouse with $350 as a reasonable vehicle payment. Why Do I Say The Girlfriend? Although alimony is payable to husbands or wives, the disparity of incomes almost always means the wife is the dependent spouse in Eastern North Carolina. Usually, the wife seeks alimony, and the husband tries to defend against paying it, or at least tries to lower the amount of it. Based on this assumption, the wife loses alimony if she resides with a boyfriend or remarries. On the...

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A (Very Brief) History of Women Separation and Necessaries

A (Very Brief) History of Women Separation and Necessaries

A (Very Brief) History of Women Separation and Necessaries  By Amy A. Edwards Did you ever wonder why “they might come after me” if the bill collector can’t find your ex? It is because North Carolina uses the doctrine of necessaries. When you hear about a duty of support, you think of alimony but that applies only between spouses. But when a third-party, such as a doctor or hospital, provides necessary services to a spouse, that third-party has the right to seek payment from the other spouse in certain circumstances, based on the doctrine of necessaries. This arises in both services (medical and non-medical) and goods but necessaries are frequently disputed in the context of medical care. Those services are usually expensive enough to merit the time and cost of litigating them in court. The general rule is that a third-party who provides medical services that were necessary for health and well-being of the husband or wife may seek payment from the other spouse. [FN1] The Exception to the Rule: Separation and Notice North Carolina recognizes a quirky exception to the general rule. If you and your spouse are separated when he or she receives the medical care and the provider has actual notice that you are separated, you have a defense. [FN1] In other words, current law says that just being separated isn’t legally adequate to get you off the hook for your spouse’s medical bill. The third-party provider must be put on notice that you are separated. As you might imagine, most people won’t go to the hospital and elect to mention that their spouse shouldn’t be liable for payment of the bill. People can avoid being at the mercy of the law by making their own agreement. Usually, separation agreements address this by agreeing the person who receives care must reimburse the other spouse if he or she is forced to pay it. Early Law: Wife’s Expenses The colonies brought with them British law, which at the time said that unless the wife left her husband for an unjustified reason, he was responsible for her necessary expenses, i.e., her necessaries. Technically, if a husband failed to provide for her, a wife was legally entitled to obtain what was necessary, at which time he would owe the provider of goods or services on her behalf. This assumes she was in a position to enforce those rights. But unlike a single woman,...

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