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Putting Humpty Dumpty Together Again: Breach of Contract

Posted by on Mar 26, 2019 in Blog, Family Law | 0 comments

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 Gen. Stat. §50-20. In fact, the division of marital property is called equitable distribution. In several matters related to family law, a judge’s discretion is used, based on what is just and fair. Family Law: Specific Performance If the court doesn’t use financial damages to remedy the problem, what does it use? The answer is specific performance, enforcing a contractual obligation to act or perform in a specific way. Besides continuing and repetitive money paid every month, a family law contract may involve obligations such as signing a deed, returning family photos to the other spouse by a certain deadline, filing joint tax returns or naming someone as a beneficiary of life insurance. Money doesn’t fix those types of problems. These are examples of a promise to act or perform in a certain way.  In these instances, a judge will enter a decree of specific performance, ordering the other party...

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

Posted by on Mar 9, 2019 in Alimony, Blog, divorce | 0 comments

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 other hand, as a supporting spouse, the bare fact that the husband resides with a girlfriend and/or remarries is not important. Because it is almost always a husband paying alimony, we are usually dealing with a live-in girlfriend, which is why I am referencing the girlfriend. How Does a Girlfriend Impact Alimony? The circumstances in each case are unique, and each case is based on the finances of the parties. However, in looking at the big picture, there are two main ways that courts can address the live-in-girlfriend in alimony cases. These two methods apply both when the court first rules on alimony, and at any future times if either party files a motion to change the amount of alimony. First, the court can reduce the amount of “reasonable” expenses he can otherwise claim. This frees up the money that he has at his disposal to be applied to alimony....

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A (Very Brief) History of Women Separation and Necessaries

Posted by on Mar 2, 2019 in Alimony, Blog, divorce, Family Law, Marriage | 0 comments

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, upon marriage, a wife had virtually no independent legal existence. In one 1858 North Carolina case described below, the Court noted that “. . . the legal existence of the wife is merged in that of the husband, so that she is incapable of making a contract, . . . to bind either herself or her husband.” [FN 2] While the couple lived together, the wife could be considered an agent of her husband. Early Law: What if They Were Separated? A wife’s agency status ended if she left her husband. In most circumstances, the law looked unkindly on wives who made the decision to leave their husbands. The element of fault determined whether a wife had good cause to leave her husband. If she had a good reason to leave him, the husband would be responsible for the wife’s necessary expenses. If she did not have a valid reason to leave...

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How Are Marital Assets Valued in Court?

Posted by on Feb 12, 2019 in Blog, Equitable Distribution of Marital Property and Debt, Family Law | 0 comments

How Are Marital Assets Valued in Court?

How Are Marital Assets Valued in Court? By Amy A. Edwards In equitable distribution marital property cases, the court has a legal duty to identify assets and classify them as marital, separate, divisible or mixed assets (part marital and part separate). Parties are always free to stipulate or agree that assets have certain values, but if they cannot, the judge must make the decision on what each asset is worth. What Does the Law Say About Value? For marital property purposes, the value of a marital assets is fair market value, “the price which a willing buyer would pay to purchase the asset on the open market from a willing seller, with neither party being under any compulsion to complete the transaction.”[1]  The court must use the net value of marital property, meaning the fair market value minus the outstanding debt at the time the parties separate. [2] If the court finds that a property is worth the same thing as the outstanding debt, the value is zero. Courts also assign negative values to assets worth less than the outstanding debt. New vehicles often fall into this category when the down payment is not substantial. Valuing Marital Assets is Mandatory Only if an asset, or part of an asset, is marital does the court then have to make a ruling on the value of it. It sounds like common sense but if neither of the parties presents evidence to the court of the value, the court cannot just make up a value. In one case[3], a couple owned a gas station, and the business was in the husband’s name. Although the wife proved that the business was established after marriage and before the separation, she failed to offer any credible evidence on the value of the business. The court must value an asset in order for it to become a marital asset. Therefore, the court had no choice but to award the business as his separate property.  Property Appraisers The most obvious way to prove the value of an asset is by an appraiser who has special skill and experience with the asset at hand. People frequently have appraisals performed for jewelry, real estate and antiques. Often, the appraiser is hired by one or both of the parties to prepare a report for the court, to be used during the trial. Appraisers value marital property and the increases in value of separate property when the non-owner says there is an increase in value during the marriage. They also determine values of “divisible property,” which includes certain increases or decreases in the value of marital property from the date of separation until the date of the trial.  Certified Public Accountants CPAs value any number of things, including the value of ownership interests in corporations, medical or legal practices, stock options and investment accounts, and other intangibles (i.e., the abstract concept instead of something you can hold in your hand). One routine asset that CPAs value is the marital portion of retirement accounts, meaning the value created between the date of the marriage and the date of the separation. All benefits generated before the marriage and after the separation belong to the employee spouse. If there are contributions to, or withdrawals from, a retirement account such as a 401(k) plan, the CPA also values those in comparison with the overall...

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Forgive and Forget: Condonation in North Carolina

Posted by on Feb 4, 2019 in Alimony, Blog | 0 comments

Forgive and Forget: Condonation in North Carolina

Forgive and Forget: Condonation in North Carolina By Amy A. Edwards Judges have a good deal of leeway in deciding what to do about marital fault and defenses when they are proven in court. Traditional sex roles are rapidly changing in some ways but not in others, and judges react differently to the behavior that constitutes marital fault. Some think fault is very important, but others do not. Marital fault relates to alimony, not equitable distribution, which is the division of marital property. What Are the Marital Fault Grounds? A spouse commits marital fault if he or she abandons the family, commits adultery, “maliciously turns the other out of doors” or “by cruel or barbarous treatment endangers the life of the other.” If a spouse “becomes an excessive user of alcohol or drugs so as to render the condition of the other spouse intolerable and the life of that spouse burdensome” that is also marital fault. The last ground of marital fault, known as indignities, is a catchall for bad behavior generally. It occurs when a spouse “offers such indignities to the person of the other as to render his or her condition intolerable and life burdensome.” NC Gen. Stat. §50-7. Consequences of Marital Fault Marital fault is not a requirement for alimony. But if someone commits marital fault, the judge can financially penalize the person receiving or paying support. In cases of adultery, the financially-dependent spouse who cheated cannot receive alimony, and the supporting spouse who is the bread-winner must pay alimony if he or she cheats. The policy is based on the historical tradition of an innocent dependent spouse who was left financially stranded by the other, who left for greener pastures with another romantic interest, for example. What is a Defense to Marital Fault? A defense means that you can be shielded from the consequences the marital fault that you committed. A defense excuses the bad behavior (i.e., the marital fault) and gives the spouse at fault a “clean slate” legally. From our example above, if you are an adulterous supporting spouse without the legal defense of condonation, you are automatically required to pay alimony. The only remaining questions at the point is the amount of alimony to be paid, and for how long. The Defense of Condonation Condonation, condoning bad behavior, is as a defense to a spouse’s marital fault. Black’s Law Dictionary defines condonation as “conditional remission or forgiveness, by one of the married parties. . . the condition being that the offense shall not be repeated.” If you forgive your spouse for having an affair, for example, you do so on the condition that he or she never cheat again. Critics of condonation argue that it discourages reconciliation because the victim of the fault can be penalized for trying to save the relationship. On the other hand, the policy makes sense when you consider a 25-year-marriage, and the prospect of arguing about an affair that happened 21 years ago. Although the law delves into the reason for the separation, it does not delve into the marriage. How Do You Prove Condonation? To have the benefit of the forgiveness, the condonation defense, the spouse at fault must first prove that the innocent spouse knew that the misconduct occurred. It isn’t enough that he or...

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When Does Child Support Stop in North Carolina?

Posted by on Jan 20, 2019 in Blog, Child support | 0 comments

When Does Child Support Stop in North Carolina?

When Does Child Support Stop in North Carolina? By Amy A. Edwards Each state specifies the age at which child support ends. In North Carolina, NC Gen. Stat. §50-13.4 requires child support to be paid until a child is age 18 or graduates from high school, whichever is longer. Support may end sooner than that if a child becomes emancipated. There is a legal proceeding that allows a minor who is at least 16 years old to file seek a decree of emancipation from a judge. But most commonly, a minor is automatically emancipated when he or she marries or joins the military. Unless parents have agreed otherwise in a separation agreement or consent order, if parents have multiple children, support does not automatically drop by 50% when another child graduates or reaches 18, etc. Instead, child support is recalculated based on the child support guidelines and the remaining child or children if a parent files a motion to modify support. Ages 18 to 20 Support may last longer than age 18 or graduation if the 18-year-old is still in school after reaching age 18 but hasn’t graduated. In that event, child support continues until he or she quits high school, fails to attend school on a regular basis or make satisfactory academic progress towards graduation, or reaches age 20, whichever is first. “If the child is enrolled in a cooperative innovative high school program . . . then payments shall terminate when the child completes his or her fourth year of enrollment or when the child reaches the age of 18, whichever occurs later.” NC Gen. Stat. §50-13.4(c)(3). Past Due Support There is one big exception to the general rule. If a parent owes outstanding child support when the payments would usually terminate, the payments will continue in the same amount, to be applied to the outstanding support until the balance is satisfied.  Support from Grandparents When a minor has a baby, the grandparents have primary liability for the support of the grandchild. However, even though the parent of the baby is a minor child, he or she is secondarily liable for the baby’s support. The court determines the proper share of financial responsibility for the baby. A grandparent’s responsibility for child support ends for both the parent and the grandchild when the minor parent reaches the age of 18 or becomes emancipated. If only one of the baby’s parents was a minor when the child was conceived, all four of the baby’s grandparents are liable for child support arrearages that were owed by the adult (or emancipated) parent until the other parent reaches the age of 18 or becomes emancipated. College Expenses The court can’t order a parent to pay college expenses. However, the court will enforce an agreement for college expenses made by the parents in a contract, such as a separation agreement, or in a consent order. If parents agreed to pay a share of college expenses, the child has the right to sue one or both of them for failure to pay those expenses. The court will also enforce an agreement between parents to pay child support past the age of 18 (regardless of college).     Amy A. Edwards is a family law attorney in Greenville, NC, certified by the NC State Bar Board of Legal Specialization as...

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Free-Trader Agreements in North Carolina

Posted by on Jan 12, 2019 in Blog, divorce, Equitable Distribution of Marital Property and Debt, Family Law | 0 comments

Free-Trader Agreements in North Carolina

Free-Trader Agreements in North Carolina When a married couple separates, if they can reach an agreement on all of the issues between them, they may choose to sign a separation agreement. It is a contract that says how they have agreed to divide property and debt, how family support will be provided, if any, and what they will do about parenting time if they have children together. One of the usual terms contained in it is a free-trader-agreement (FTA). If there is no separation agreement, an FTA can be a short contract by itself. What’s the Problem? Many couples own real estate when they separate. After time passes but before the divorce is granted, some people consider home ownership. When married couples acquire a mortgage loan, both usually sign the promissory note, which means they both have a legal obligation to make mortgage payments. That’s pretty straightforward. But when only one spouse signs a promissory note, only he or she owes the money. To oversimplify the problem, if the home-owner dies before becoming divorced, the surviving spouse has no legal responsibility to make the mortgage payments. But regardless of the fact that a married couple is separated, as a spouse, the non-home-owner would still have certain inheritance and survivorship rights to the property. Remedy #1 – Free Trader Agreement Mortgage lenders require parties to sign an FTA, which is an agreed-upon right to buy (i.e., trade) freely (i.e., without interference). Mortgage lenders lend money to buy a home that will be theirs if they foreclose on the loan. They don’t want to share any ownership of the home with the surviving spouse (who isn’t obligated to make mortgage payments). The purpose of an FTA is for the spouse who is not buying the home agrees to waive all claim to it, including inheritance and/or survivorship rights. Usually recorded on public record at the office of the Register of Deeds, these contracts clarify that the spouse buying the home has exclusive ownership of it, even though he or she is married. Because the FTA is a contract, both parties must voluntarily agree to sign it.  Remedy #2 – The Divorce When a divorce decree is granted, the other person is no longer a spouse, so the mortgage lender no longer has the problem of an ex who is still a surviving spouse even if they were separated for some time when the home was purchased. However, in North Carolina, a spouse can’t even sign the divorce complaint, which generates the lawsuit, until he or she has been separated for at least one full year. When a spouse files for a divorce, it usually takes another two to three months before the divorce decree is granted. When the other spouse refuses to sign an FTA, the only remedy is the divorce, which is nearly impossible to contest because it is based on a one-year separation. Amy A. Edwards is a family law attorney at Amy Edwards & Associates, PLLC, in Greenville, NC. She is certified by the NC State Bar Board of Legal Specialization as a Family Law Specialist, and is licensed only in NC. Laws change. This article is current as of...

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Biofeedback: Another Tool For Managing Divorce Stress

Posted by on Dec 27, 2018 in Blog, Resources | 0 comments

Biofeedback: Another Tool For Managing Divorce Stress

Biofeedback: Another Tool For Managing Divorce Stress By Tami Maes Fragedakis, PhD, LPC, BCB, LRT, CTRS* Experiencing a divorce is ranked as the second highest stressor of all life transitions (Holmes-Rahe, 1967). While people may react differently to a divorce, the life changes and transitions that accompany this experience have consequences. The many negative effects that occur may be detrimental to one’s physical and mental health (Amato, 2012). Without proper coping tools, experiencing a stress response for a duration of time may result in dysfunctional patterns of behavior and additional psychological distress. Biofeedback is an alternative form of therapy that can be used to reduce stress and gain control over the physiological dysfunctions that accompany life’s transitions.   Biofeedback is a training modality used in conjunction with therapy. Through training, individuals are better able to understand and identify their personal, physiological responses to stress. In addition, individuals are able to manipulate their personal reactions, thus enabling control over the symptoms they experience. Non-invasive sensors are attached to the individual to measure the body’s internal reactions. These include heart rate variability, skin temperature, skin conductance, and electrical activity of the muscles. The sensors are connected to a biofeedback device which quantifies the data. The information is then displayed on a computer screen in the form of visual and auditory feedback.  The therapist helps the individual make sense of the information according to their symptoms experienced and then teaches the individual how to control these parameters. Working in the same way as biofeedback, neurofeedback entails non-invasive sensors which are attached with conductance paste on various places of the individual’s head. Electrical activity of the brain, or brain wave data, is then recorded and computed with the biofeedback equipment and displayed on a computer screen for the individual to see. The therapist explains these signals in relation to thoughts, emotions, and symptoms presented. The participant can then ‘see’ the electrical activity of their brain and how this activity changes with certain thought patterns and while experiencing various emotions. The brain creates loops or ‘highways’ of information. Neurofeedback allows the individual to see these feedback loops. Training thus enables the individual to change the feedback loops within the brain and create healthier pathways. The process allows the person to regulate their own brain wave activity to improve overall mental and emotional health and achieve their desired mental performance. Experiencing stress in response to life events is normal. How an individual handles this stress is imperative to their overall wellbeing. Biofeedback measurements provide a visual representation of the internal stress responses in real time, which increases their self-awareness, and provides validation for the individual’s lived experience. The primary goal of biofeedback training is to provide necessary tools for individuals to develop a skill-set in order to better control their stress response and become their best self. With the ability to self-regulate, participants are able to diminish the impact of stress on their daily life, decrease symptoms associated with mental health conditions, and achieve emotional well-being.   * Dr. Fragedakis is a Licensed Professional Counselor in the state of North Carolina and is board certified nationally in biofeedback. She owns Capital Biofeedback, Inc. in Cary, North...

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Second Thoughts About Separating: Should We Reconcile?

Posted by on Dec 16, 2018 in Blog, Relationships | 0 comments

Second Thoughts About Separating: Should We Reconcile?

Second Thoughts About Separating: Should We Reconcile? By Amy A. Edwards After spouses separate, they routinely hire attorneys and begin the negotiation and/or court process, which almost always causes the relationship to further deteriorate. But on occasion, there are couples who separate but then find their way back to each other. Separating and Reconciling In North Carolina, if spouses live in separate residences, and at least one of them has the intention to remain separated from the other, they are considered separated. But the law is murky on the topic of what it means to reconcile, resuming the marital relationship and “canceling” the separation. It is decided on a case-by-case basis, and is not proven by isolated incidents of sexual intercourse. NC Gen. Stat. §52-10.2. Although reconciling usually means both spouses moving into the same household together again, there are a number of complicating legal factors to decide whether the spouses have actually reconciled. This means a dispute over whether you have reconciled will probably be expensive. Why Does it Matter? The world of family law revolves around the date of separation. The law requires a full one-year separation before either party can file for a divorce. If the spouses separate and then reconcile, the clock starts over again, requiring a one-year-separation. Marital and non-marital assets and debts are defined, classified and valued based on the date of separation. Changing the date of separation by reconciling and separating again at a later date can have a huge financial consequence. Likewise, the date of separation can be critical in alimony and child support cases too. If the parties signed a separation agreement or there were court orders in place when spouses reconciled, that triggers another layer of problems beyond the scope of this article. What is the Motive for Reconciling? It can be difficult to know whether the other spouse’s reason for trying to mend their relationship is genuine. People should consider talking with a counselor or other professional who can address the personal relationship between the spouses. Like any other major decision, a spouse should think long and hard about jumping back into the same situation that has already caused so much grief and expense in the first place.  As for their legal relationship, the first question to ask is whether the other spouse has any legal incentive to reconcile. Fault can be a useful tool in alimony cases. If someone has committed marital fault in the eyes of the law, such as adultery, he or she probably has a good legal reason to seek forgiveness, regardless of whether there is heart-felt regret or even a personal desire to reconcile.  Serious Consequences An attorney might advise a spouse to move back into the family home and gain access to confidential information, sneak out personal property like jewelry, or avoid the cost of operating two households while he or she saves money to hire an attorney. Once that spouse feels he or she has the upper-hand, what will be necessary to get him or her out of the house again? That creates new risk for new marital fault, and it will almost certainly cost you more money to address again. If you are considering a reconciliation, talk with your attorney BEFORE making a final decision. Find out what you can...

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