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Is Credit Card Debt Marital?

Is Credit Card Debt Marital?

Is Credit Card Debt Marital? By Amy A. Edwards In short, credit card debts can be marital, just as any other type of debt. In contrast with marital property, the law doesn’t assume a debt is marital just because it was incurred during the marriage. If a debt is marital, each party is equally responsible for it, although the court usually assigns it to one party to equalize the net part of property each party gets. If a debt is separate, it isn’t calculated into the marital estate, and the person who has the account in his or her name is responsible for it. To understand credit card debt, we must first look at what a marital debt is. The Timing of Marital Debt A marital debt must generally be incurred by one or both spouses while they are married and before the date of separation (DOS). One exception to that rule is when one spouse takes a loan after DOS to pay off the “old” marital debt that existed on DOS. [1] Like marital property, marital debt must exist at DOS. If you just paid off your credit card with your bonus from work, and then you separate, the debt doesn’t exist at DOS and it is not a marital debt for which you would get credit for paying. What’s in a Name? Marital debt can be in the names of one spouse or both. However, there is one important distinction between debt and marital debt. The court can say who is responsible but only as between two spouses. But the court can’t tell a third party, such as Mastercard or Visa, that they can only enforce the debt against one person when two people signed the agreement to repay them. The court may indemnify a spouse, meaning that if the husband is assigned to pay the credit card debt and he fails to do so, he has to repay the wife if the credit card company sues her for payment. But if the other spouse had the money to repay you, he or she would’ve probably paid the debt in the first place. In practice, indemnification only goes so far. Joint Benefit: The Key Issue Unlike marital property, to call a debt marital, it must be incurred for the joint benefit of the parties. [2] There is no presumption that the debt was incurred for the benefit of both parties. If you want to prove...

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Overview of Personal Injury Law

Overview of Personal Injury Law

Overview of Personal Injury Law By Lindsey Weaver Alday A personal injury claim can be a slip and fall accident, car accident, truck accident, bicycle, motorcycle, pedestrian accident, etc. The elements are that someone was injured due to the negligence of another and did not contribute in causing their own injury. What is the Law About Personal Injury? You have to prove the negligent party had a DUTY and failed to do it. This is negligence. Example: driver had the duty to stop at the stop sign and failed to do so. You also have to prove there is an INJURY. Sometimes people act negligently or even intentionally, but no injury occurs. Example: wrong medication is dispensed, or a punch is thrown but misses. This means proving who is at fault at trial would be easy. But if you weren’t injured physically and didn’t suffer any economic damages, then there is nothing to recover. Finally, your case must be RECOVERABLE. As they say in the south: “You can’t bleed a turnip.” If you are shot intentionally by someone with no money, who is at fault is easy to prove, and the damages are clear and easy to prove. However, the most important question is sometimes: CAN YOU RECOVER your damages? If there is no rainbow at the end of the tunnel, there is no monetary reason to proceed with your case. Why Do I Need a Lawyer for My Personal Injury Case? The insurance adjuster is NOT your friend. The adjuster will attempt to gain your trust. He or she will treat you so kindly, recording your every word. You will minimize your injuries when speaking to them because we like to please others (and it is a Southern thing to do). This will be used against you later. Something that is innocent, or out of your control, can be used and twisted by an experienced defense attorney in court and sometimes the best way to deal with this fact is to prevent these issues before they happen. Example: The office staff delayed your referral. At trial, the defense attorney argues that you must not have been that hurt because you didn’t seek treatment urgently. The Personal Injury Lawyer Most importantly, if you are not represented by an attorney, then the insurance company knows that you most likely will not take them to court yourself. When you are represented by an attorney, your threats...

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Meet Our New Attorney Lindsey Weaver Alday

  Meet Lindsey Weaver Alday  Personal Injury Attorney           Lindsey Weaver Alday was born in Farmington, New Mexico. Her father’s occupation as an engineer brought her family to various small towns across the United States including Gillette, Wyoming; Plymouth, North Carolina and finally Bear Grass, North Carolina. Although she came from afar, Lindsey is proud that in 1989 her family roots were planted in Bear Grass, North Carolina where she graduated from Bear Grass High School in 2003.             Lindsey was on the East Carolina University varsity tennis team and received honors in Chemistry during her first undergraduate year. She then transferred to University of North Carolina – Chapel Hill where she majored in Philosophy and graduated in 2007. She attended law school in Bloomington, Indiana at the Indiana University Maurer School of Law where she graduated cum laude in 2010.          After graduating, she returned to eastern North Carolina to practice personal injury law.Lindsey has many active interests including horseback riding, tennis and volleyball. She met her husband, Alex Alday (who was also born afar in Manila, Philippines) while playing club volleyball here in Greenville. They soon married and raise their three beautiful young children, one little girl and two twin toddler boys in Winterville. Personal Injury Practice           Lindsey is committed to serving her eastern North Carolina community. She has a passion for making insurance companies pay fair compensation to those injured in accidents. She believes insurance premiums are paid not to increase the profits of the insurance company, but to compensate people who are injured. She has experience in all aspects of litigation including negotiations, depositions, hearings, mediations, arbitrations and cases tried to jury verdict. Over her five years of personal injury practice, she recovered millions of dollars on behalf of her clients. Lindsey’s career goals are to continue to build relationships with satisfied clients by maintaining integrity and honesty throughout the representation.  Education ♦   University of North Carolina – Chapel Hill, BA Philosophy & minor in Chemistry ♦   Indiana University – Maurer School of Law, JD 2010, cum laude Professional and Community Affiliations ♦    North Carolina Advocates for Justice – Auto Torts Section ♦    Beaufort County Bar Association (President 2014) ♦    Pitt County Bar Association ♦    North Carolina State Bar  ♦    Blind Center of North Carolina (Executive...

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Standing: Who Can and Can’t File for Child Custody

Standing: Who Can and Can’t File for Child Custody

Standing: Who Can and Can’t File for Child Custody The ability to file a legitimate lawsuit for child custody is extremely limited. A person must have “standing” to file, which “relates . . . to the right of the party to have the court adjudicate a particular dispute.”[1] You must have some vested interest in something before you can even ask the court to rule on the controversy. Which Parents Can File? Parents automatically have standing to file for custody against each other because they both have equal constitutional right to the care and custody of their child. They have equal rights to their child unless there is a court order or they have a custody agreement. However, our statutes forbid anyone who is convicted of the following crimes, and which resulted in the conception of the minor child, from filing a child custody claim: first-degree forcible rape, second-degree forcible rape, statutory rape of a child by an adult or first-degree statutory rape. [2] Which Non-Parents Can File? When non-parents have custody, they are usually family-members because they are likely to see the child regularly, care for the child or have a strong bond with the child. It has little to do with which relative asks for custody. Instead, it has everything to do with the behavior of the parents. A non-parent only has standing to file for custody in the event that both parents are unfit or have taken actions that are inconsistent with their constitutional right to the care and custody of their child. This standard is the same as any non-parent. This even applies to grandparents who cannot sue for custody merely by virtue of their status as grandparents, although they may seek visitation in limited circumstances. Who Else Has Standing to File? Proving that the parents are unfit or that they have acted inconsistently with their rights is a huge hurdle. Constitutional rights protect parents who are merely adequate, or parents who don’t do a good job of parenting. But if the non-parent proves the parents are unfit or behaved inconsistently with their rights, our statutes set out a very broad list of potential custodians: “Any . . . other person, . . . claiming the right to custody . . . may institute a . . . proceeding for the custody of such child. . .” [2] But the non-parent cannot be a stranger to the child. He or she...

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What is Marital Property in North Carolina?

What is Marital Property in North Carolina?

What is Marital Property in North Carolina? Before 1981, our state had traditional title ownership. This meant that the assets would be awarded to the person in whose name they were owned if a couple divorced. If the house or vehicle was in the husband’s name, for example, the wife received no share of the value for it. Reform: Equitable Distribution Some states have what they call community property. Instead, we use a process known as Equitable Distribution to divide marital property. After a particularly harsh result in a 1979 case that demanded reform, an equitable distribution statute was created, NC Gen. Stat. §50-20. Title ownership was fairly straight forward, but the newer process has lots or grey area. Instead of strictly using the law to simply look at the name on the deed or car title, the statute requires judges to divide property fairly (i.e., equitably) between spouses. When the court decides property is marital, it is given to (i.e., distributed to) one spouse or the other, even if his or her name is not on the title or other ownership title. Equity gives the judge discretion to award assets as he or she sees fit, so long as it is within the terms of the law. The law requires judges to divide marital property equally unless one uses his or her discretion to do otherwise when there are special reasons. Marital Property Definition Marital property includes land and personal property that is acquired by either or both spouses during the marriage but before they separate. It must also be owned at the time they separate. If it meets these requirements, the property is legally presumed to be marital. In other words, if a spouse wants to show that property is his or her separate property, he or she must prove it is separate property. To beat the legal assumption that it is marital property, he or she must prove the property was acquired before they married, after they separated, or acquired by a spouse by devise (property transferred by a will) or by descent (property inherited upon death). What Counts as Property? The current statute includes just about everything with a dollar sign on it, and a few things that don’t have any real value, such as photo albums, or even a negative value such as an overdrawn bank account. Other examples you might not think of include cemetery property,...

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