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The Life Span of a Typical Case in Pitt County

The Life Span of a Typical Case in Pitt County

The Life Span of a Typical Case in Pitt County Although the term “typical case” is a misnomer, there are certain goals to be met as you wind your way through the local court process. I say goals because the judge has the discretion to adjust the times as may be necessary in each unique case. Life is messy and court is messier, sometimes not fitting into a specific timeline. We’re fortunate to have an official Family Court in Pitt County, staffed with three individuals. They keep the process moving along, by means of local court rules, the development of certain standardized forms to use in routine administrative matters and expedited communication with the judges concerning the most efficient way to handle issues that crop up as the case moves forward. The court expects the case to be resolved within a year if possible. Phase One: File the Lawsuit A family law case is filed at the courthouse by a Complaint, followed by an Answer and Counterclaims in response, and other filings. This process of putting the court and the other party on notice of what relief each party seeks can take up to 6 months after the case is filed. In the meantime, the court might hold hearings on temporary (until the case is finished) child custody, child support or alimony within 2 months after the case is filed. The parties might also choose to use discovery, which might require a deposition, paperwork to be exchanged, or written answers to specific questions by the other party. Discovery by one or both parties can easily take 2-3 months. The party who files for equitable distribution, the division of marital assets, first must complete a very detailed listing of assets and debts called an EDIA, and the other party then files his or her version. This process takes at least 4 months. Phase Two: Negotiation and Mediation Although clients usually know what property and debt there is, and the income of each party, the attorneys don’t really know until he or she reviews the actual evidence (the tax returns, pay statements, self-employment, etc.). Once the attorneys have a general idea of the scope of the marital estate and what the actual disputes are, they can each then decide the best strategy to use. Another fundamental task is to figure out whether the parties already agree on certain matters, such as...

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Collaborative Family Law: Are You Both on the Same Page?

Collaborative Family Law: Are You Both on the Same Page?

Collaborative Family Law: Are You Both on the Same Page? In the traditional setting of court, the parties are adversarial. This means they are on opposing sides of an issue, each competing for a ruling from the judge. Court tends to be a win/lose scenario. Instead of being adversarial and working against each other, the objective for both parties in Collaborative Family Law is to find a win/win solution to their dilemmas. The parties collaborate in an effort to create the best settlement they can. All four people, both parties and both attorneys, brainstorm in a series of what are called four-way meetings. Because the parties aren’t adversarial, the attorneys and parties discuss things among themselves in a civil manner during the four-way meetings. There is no cross examination. Instead of the courtroom, they usually meet in an office of one of the attorneys. How Does Collaborative Family Law Work? Collaborative Family Law (CFL) is an alternative dispute resolution authorized by the NC General Statutes. It is used only by the agreement of both parties and can be used for almost any type of family law dispute, including child custody and support, alimony, and equitable distribution of marital assets and debts. The attorneys and their clients sign a CFL pledge. In traditional family law cases, the spouse with more money to spend sometimes drags out the process forcing the other spouse to settle because they can’t afford to go to court. The CFL pledge includes a commitment not to “starve out” the other party. If either party decides to litigate (i.e., go to court), the CFL process ends and both parties have to hire new attorneys. This a built in deterrent for starving out the other party. However, the parties can include in their pledge an agreement to use mediation or arbitration if they can’t reach an agreement. By doing that, their attorneys can represent them throughout all three processes, CFL, mediation and arbitration, if necessary, never going to court.  Am I Protected by My CFL Attorney? Yes. Attorneys facilitate the agreement meaning the parties take an active role in the case. If someone suggests a course of action that is not feasible or fair, the attorney advises him or her against it. Both attorneys meet with both clients in four-way meetings. But each attorney also meets with his or her client privately at his or her office. In fact,...

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Mudslinging in North Carolina Child Custody Cases

Mudslinging in North Carolina Child Custody Cases

Mudslinging in North Carolina Child Custody Cases According to www.dictionary.com, mudslinging is “an attempt to discredit one’s competitor, opponent, etc., by malicious scandalous attacks.” In North Carolina, a no-fault divorce means that the only reason you need for a divorce is a one year separation. Division of marital property is generally an equal division, and the only type of fault the court will entertain is financial fault related to assets and debts. While marital fault isn’t required for alimony, it is specifically listed in our state laws as a defense and in some cases the sole reason alimony is or isn’t awarded. While the law does not call it fault or marital fault, the behavior of parents becomes front and center in a child custody case. There are rules of evidence, rules of procedure, and local rules for each court, and the law itself. However, a judge has the authority in his or her discretion to hear almost anything if it is relevant to a child’s welfare. A parent’s judgment and fitness can be demonstrated by a wide range of events. Is Mud Slinging Inevitable? Probably, unless you choose alternative dispute resolution. See more about in the last paragraph of this article. Based on my experience, I don’t think the majority of people truly want to sling mud at the beginning of a case, although they are often hurt and angry. They usually just want to get a custody agreement as quickly as possible at a reasonable cost and move on with their lives. But as litigation takes its course, the allegations of bad behavior operate like the threat of nuclear weapons. When one side starts to pile them up and test them, the other side takes offense and acquires his or her own stockpile and begins to test them. Many cases settle through negotiation and mediation but when they don’t, the slinging accelerates rapidly thereafter. By the time a child custody case reaches the courtroom, mudslinging seems inevitable regardless of whether a parent is trying to avoid mudslinging or be the one slinging. Some end up doing so if only because they feel a response to the other party’s allegations is necessary. The Down Side of Mudslinging No parent who testifies is without sin. By definition, the very nature of your past relationship is intimate. When you begin dredging up things from the other person’s past, there will always be a response which will usually include your deepest darkest secrets as well. Fault-based alimony trials can be intense but the worst case scenario is a long and vicious custody battle. In the worst...

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The Great Treasure Hunt: Hidden Income

The Great Treasure Hunt: Hidden Income

The Great Treasure Hunt: Hidden Income Child support and alimony cases are based on the incomes of the parties so it is important to leave no stone unturned, even if one of you has no income. North Carolina law usually counts all kinds of compensation as income, although there are some exceptions. What Are We Looking For? Income is not defined by salary alone. Especially with large employers or self-employed individuals, there are “hidden” forms of compensation. There are two basic kinds of income in family law. Earned income is based on employment (salaries, wages, commissions, bonuses, dividends, severance pay, etc.) and unearned income includes everything else. Examples of unearned income include ownership or operation of a business, rents received from rental property, retirement or pensions, interest, trusts, annuities, capital gains, certain Social Security benefits, worker’s compensation benefits, unemployment insurance benefits, disability pay and insurance benefits, gifts, prizes and alimony or maintenance received from persons other than the parties to the instant action. (From the NC Child Support Guidelines). The Evidence: Tax Records Courts first look at tax returns, which hold important clues about income. Most people know the W-2 statements include wages, tips and compensation as shown in box 1, which are taxed. But not everyone realizes box 3 of a W-2 statement reflects the social security wages, including income that isn’t taxed. If the amount of social security wages is larger, it should be used. Why? Because the larger amount includes tax deferred benefits. The most common example is an employee’s choice to make contributions to a 401(k) plan. Otherwise, several thousand dollars of income is easily missed. If someone has a 1099 tax statement, it means there is “miscellaneous income” such as money paid to that person for services as an independent contractor. A 1099-R statement is issued when a person collects retirement from pensions, annuities, retirement or profit-sharing plans, IRAs, insurance contracts, etc. Social security is shown on a SSA-1099 tax statement, which might be missed because sometimes it is taxed, and sometimes not. All of these tax statements, not just the tax returns themselves, indicate income for purposes of child support or alimony. The Evidence: Pay Statements While tax returns and tax statements give us a good starting point, they don’t tell the whole story. Certain benefits are disguised because they are voluntarily payroll “deducted” from someone’s pay. However, many of those deductions represent compensation the employee chooses to divert, so they are...

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Can I “Give Up My Rights” as a Parent?

Can I “Give Up My Rights” as a Parent?

Can I “Give Up My Rights” as a Parent? Especially when child support is pending, some people mistakenly think they can avoid paying support, or avoid the other parent seeking visitation, if one parent surrenders parental rights. Because parents have legal duties to their children, and because various rights as next of kin flow from parents, there are very few occasions when “giving up” parental rights is legally possible. Courts are extremely hesitant to legally erase a parent from a child’s life unless there is another adult stepping up to legally assume that role. Making sure the parent is in fact the parent (maternity and/or paternity and/or legitimation) is a legal determination, and this article assumes these designations have been made. Duties and Rights of Parents Parents naturally have constitutionally protected rights to the care and custody of their children. So long as they meet their basic responsibilities as parents, the state has little say about their parenting so long as the children are adequately cared for and safe. Parents have a legal obligation to support children or pay child support but there are other legal benefits to which children are entitled. Children, both natural and adopted, have rights such as social security death benefits, military benefits rights, and legal claims for wrongful death of parents in appropriate cases, and inheritance rights, to name a few. Children have legal benefits from a parent even if that parent fails to pay child support or is a parent in name only.   How Are Rights Given Up? Choosing not to pursue visitation with your child is quite different from surrendering your legal rights as a parent.  One example of surrendering parental rights is found in North Carolina’s safe surrender laws, for infants seven days old or younger. Parents who would otherwise abandon an infant are given legal protection from criminal prosecution if they leave the infant with an appropriate agency or individual, such as a social worker, law enforcement officer, or an emergency medical service worker. NC Gen. Stat. 7B-500 et seq.  A parent can give legal consent to allow the NC Department of Social Services (DSS) to facilitate an adoption by a step-parent if the other parent has remarried and he or she desires to adopt, or adoption by a third party. The state then assigns new parents who legally assume the rights and duties of parents. If only one parent consents to...

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What Happens to My Child Support Payment if I Quit My Job?

What Happens to My Child Support Payment if I Quit My Job?

What Happens to My Child Support Payment if I Quit My Job?  Courts use the actual incomes of both parents to calculate child support. Some people think that by working less or changing jobs to earn less before court that they can make the child support lower. Doing so  in an effort to reduce the child support is a bad idea to do so. The Child Support Guidelines require the court to use your actual income in determining child support. However, if a parent is underemployed in bad faith or if the parent is deliberately suppressing his or her income to reduce the child support obligation, the court can assign an income based on what the parent is capable of earning. For example, if you are a medical doctor and earn $100,000.00 per year, and you quit your job to work at the mall earning $20,000.00 per year to avoid paying as much child support (or to get more support), the court can impute an income of $100,000.00 to you. Motive is crucial for the court to determine.  Imputed Income Basing the income on what a parent is capable of earning instead of the actual income is known as imputing income. The court can also impute income if the parent has “deliberate disregard” for the child’s support. Askew v. Askew, 119 N.C. App. 244 (1995). Imputing income is a two-way street. If the parent who is deliberately trying to reduce income is the one who has physical custody, the court may still impute income. Although that parent is not the one paying child support, the amount he or she receives will be reduced if the court imputes income. Assuming the judge rules you are acting in bad faith to avoid or minimize child support, what income should be imputed? The judge must consider the individual attributes you have, such as your recent work history, education, training and qualifications. If you don’t have a recent work history or training, the court will assign an imputed income of minimum wage. Perhaps more importantly, the Guidelines require the court to look at the local job market and incomes in the community.  No Imputed Income The court can’t use your potential income if you are under-employed because the child is three years old or younger, so long as the child is the one at issue in the child support case. If the child is not...

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