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Second Thoughts About Separating: Should We Reconcile?

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....

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My Ex Is Using the Attorney That I’m Paying For!

My Ex Is Using the Attorney That I’m Paying For!

My Ex Is Using the Attorney That I’m Paying For! By Amy A. Edwards The Attorney Client Relationship Clients can be resentful that their attorney is wasting time dealing with the pro se person. In most family law cases, each person has an attorney. When the other person is pro se, Latin for representing himself or herself, lawyers aren’t working for the pro se person and charging you for it as clients sometimes think. That is prohibited. An attorney may represent only one person in a family law case, such as a divorce or child custody case. Failure to do that is usually a conflict of interest. That means what is good for one person might be a bad thing for the other person. For example, if one spouse gets alimony that’s a good thing for him or her, but it is might be a bad thing for the other spouse. The lawyer has to choose one person or the other as a client. What’s Different? If your ex had an attorney, your attorney would have to talk with the other about settlement, discovery (documents, etc.), trial matters, and logistics of court events such as depositions. In other words, your attorney would still be taking time to talk with the other attorney. It doesn’t always take more time than it would to negotiate with an attorney. In fact, some people without attorneys are anxious to get down to business instead of posturing the way other attorneys will because they want to avoid court. The Law and Equality The law requires everyone to be treated in the same way, regardless of whether they have an attorney or not. The same deadlines, rules, laws and other requirements apply to both sides. In the eyes of the law, people shouldn’t be penalized if they cannot afford an attorney. But the judge is still bound by the law. Judges have to walk a fine line in these cases. Attorneys also have to be very careful when communicating with a pro se person. We certainly can’t give them legal advice but sometimes we do explain the reasons why the offer we are making on behalf of our client is a good one. Depending on the circumstances, the attorney will tell the pro se person that he or should talk with an attorney. Same Rules as Everyone Else But . . . Attorneys have specific...

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All About Adultery in North Carolina (Part 2 of 2)

All About Adultery in North Carolina (Part 2 of 2)

All About Adultery in North Carolina (Part 2 of 2) Part one of this article looked at adultery as it relates to alimony. In North Carolina, adultery can impact several legal rights, such as a legal separation, inheritance rights, criminal conversation, and even property ownership.   Adultery: Duty of Third Party to Warn Spouse of STD If a husband or wife passes a sexually transmitted disease (STD) to the other spouse as a result of his or her adultery, the innocent spouse may with a civil suit for financial damages against the man or woman who passed the STD to the husband or wife. To successfully prove a claim for negligent infliction of an STD, the victim spouse must prove the source of the STD, and that the infected person knew or should have known he or she was infected with venereal disease. Because it is foreseeable that the two spouses would have intercourse, the infected person has a legal duty to abstain from sexual contact, or at least a legal duty to warn the innocent spouse. Adultery: Criminal Conversation The term criminal conversation (CC) is somewhat misleading. Although it sounds like a crime, it is not. Instead, CC is a civil lawsuit for money damages. A married person may file a claim for CC against the third party who had sexual intercourse with his or her spouse. CC holds that third party financially accountable to the husband or wife for interference with his or her marital conjugal relationship, which is protected by law. Although the unfaithful spouse is not on the hook for financial damages, he or she generally testifies in a jury trial about the acts that took place. Alienation of affections is a completely different lawsuit that addresses alienating or stealing the spouse, regardless of whether there was sexual intercourse. CC is exclusively based on sexual intercourse. Adultery: Divorce from Bed and Board North Carolina recognizes a fault-based claim called divorce from bed and board (DBB), and one of the grounds for it is adultery. A decree for a DBB does not a “divorce” the husband and wife allowing them to remarry. It is a court decree that declares the spouses to be officially separated. This keeps a spouse from committing abandonment if he or she wants to separate. Instead, if a spouse successfully obtains a DBB, the spouse who committed adultery loses spousal rights to certain...

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Living With Your Lover? Better Get it in Writing

Living With Your Lover? Better Get it in Writing

Living With Your Lover? Better Get it in Writing By Amy A. Edwards When people marry, the law gives them numerous rights and obligations. But what happens if you aren’t married? The law treats the relationship differently, even if you have children together. If two people in a relationship purchase a home together, each might assume that having both names on the deed protects them if they later separate. But, that can create more questions than answers. This article is about joint home ownership by unmarried people in North Carolina, and includes information to discuss with an attorney before signing the offer to purchase property.  What Are the Problems? There are more than you might think. Below is a list of four main topics: ownership, finances, the relationship between you and the other co-owner, and estate planning matters, followed by potential ways to avoid these problems. Ownership Even if both parties are named in the deed, the type of ownership (and the various rights of each type of ownership) depends completely on how the deed is written. How should it be written? Do you want survivorship if the other party dies before you do? Do you want to have each person leave their share of ownership to their heirs? Are you considering a life estate? Your property rights are different if you marry before or after you buy the property in joint names. In fact, to accomplish certain ownership rights, parties must deed the property they already owned before marriage back to themselves after they marry.   Unmarried co-owners have an inconvenient method to divide or sell the property if they separate and can’t agree on what to do. They file a lawsuit called a “partition” that requires the court to appoint three commissioners, paid by the co-owners, who meet on the premises and report to the court how they think it should be divided. NC Gen. Stat. §46. Finances Who is responsible for paying the mortgage, taxes and insurance? Is there any protection for one co-owner if the other is sued and a judgment for money owed becomes a lien on the property, such as a small claims case which might have an 8% interest rate? Should one or both owners sign the promissory note for the mortgage? Is there a home equity line of credit? Can it be “frozen” until you figure out what to do? Who pays...

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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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The House of Cards: Parents and Substance Abuse

The House of Cards: Parents and Substance Abuse

The House of Cards: Parents and Substance Abuse  Sometimes it is obvious when a parent is impaired. Other times you might suspect something is wrong but you don’t have a mechanism to confirm it, especially when you don’t live together. Without the assistance of the court, it can be difficult to monitor. Parents in denial about their substance abuse tend to create a facade that everything is fine, like a house of cards ready to collapse with the slightest breeze. When the House of Cards Falls: What Can You Do by Agreement? In this article the term “parent” includes anyone with visitation and/or custody rights, substance abuse is abbreviated as “SA” and the law is that of North Carolina. Occasionally, a parent gets a wake-up call after being served with a summons and complaint or motion for child custody that recites the other parent’s serious concerns about SA in black and white. If that parent recognizes he or she has a problem, it is possible to enter a court order by consent and without a trial, subject to approval by the judge.  Such an order can require the parent to go to a detox facility, pain management facility for addiction to pills and prescribed medications, counseling or other treatment. The order can condition visitation on successful random drug or alcohol testing and/or confirmation from the treatment facility or SA professional that the parent has kept all scheduled appointments. Supervised visitation can be ordered, depending on the availability of a willing third party to supervise or the availability of supervised visitation or exchange facilities. When the House of Cards Falls: What Can the Judge Do?  Judges have the authority to do whatever is required to protect a child, including emergency custody orders if there are grounds for doing so. Parents with SA usually leave some path of evidence, sometimes by conviction of crimes such as possession of a controlled substance or DWIs. Other times, a careless parent might do something as simple as failing to take a child to school on time, more than once. You can ask the court to enter an order requiring the parent to do the things discussed in the above paragraph. The court also has the ability to require the other parent to submit to a physical or mental examination. An example of this is an order requiring a parent to have a substance abuse assessment, analyzing a parent’s fitness to...

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