Quality, Responsive and Trustworthy Legal Services
We offer clients a strong work ethic combined with prompt and personalized client care.

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...

read more

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...

read more

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,...

read more

How Are Marital Assets Valued in Court?

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...

read more

Forgive and Forget: Condonation in North Carolina

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...

read more

Checklist for Hiring a Family Law Attorney

Checklist for Hiring a Family Law Attorney

...

read more