Overwhelmed: Where Do I Begin?
Overwhelmed: Where Do I Begin? By Amy A. Edwards First: The Consultation A consultation is not the same thing as hiring an attorney. It is simply a meeting with an attorney, who should then give you legal advice and tell you what the cost is to hire that attorney. After the consult, it is the client’s decision whether to hire the attorney. The client might choose to do nothing at all after a consult. In fact, a number of people having problems with their relationship have consults because they want to know what their options are if the relationship deteriorates in the future. The meeting is a chance for you to bring a list of questions you have so that you can get the answers you need to make serious decisions in your life. It can be helpful to do some research to get a general information about the process, but the attorney gives you legal advice based on your specific situation. After a consult, it is common for clients to say that they feel so much better knowing what the real issues are, and what the possible solutions are. They’re sometimes surprised to discover that threats or information from the other parent or spouse is not accurate or even feasible, which can be a big relief. Second: After the Consult Once you have a few answers, you can then decide whether you are ready to move forward with the separation, custody case or other important legal matter. However, if you have been served with a lawsuit or motion, that first decision is made for you. To begin working on your case, our office requires an advance of funds to be placed in your account. Sometimes, people refer to this as a retainer. If money remains in your account at the end of your case, our office returns it to you. More often, things take longer than anticipated. This is partly because it is difficult to tell how much the other party will truly dispute. If the dispute ends up in litigation, we cannot control the court system and whether there are trial dates, civil discovery, and other litigation events. The attorney your ex hires can also make a big difference, including whether he or she is willing to make any good faith efforts to settle the case before there is a trial. Third: Relief of Sharing the Burden The next phase after your decision to hire us is to put it in our hands. People in family law cases are already dealing with a crisis in their lives. There are numerous decisions you will need to make. But relying on an experienced attorney to guide you through the decision-making process gives you the support that you need to transition from one phase of your life to the next. Different clients have different comfort levels of involvement in their case, which they usually determine after working with us for a little while. Clients can always ask questions and discuss concerns with us, but the default mode is for us to take over the case and follow up with you as needed. Amy A. Edwards is a family law attorney in Greenville, NC. She is certified by the NC State Bar Board of Legal Specialization as a Family Law Specialist, and is licensed only...
read moreThe Deployed Parents Act: Protecting Parents (Part 1 of 2)
The Deployed Parents Act: Protecting Parents (Part 1 of 2) By Amy A. Edwards In North Carolina, we’re fortunate to have the Uniform Deployed Parents Custody and Visitation Act, which helps military parents balance their military duties while they are deployed and their desire to maintain their bond with their children. Not only that, but the Act allows the child to preserve the relationship with deployed parent’s side of the family, or even an unrelated non-parent that the deploying parent nominates. Parents who reach an agreement about what will happen between the child and the non-parent during deployment can have the agreement treated as a court order if they take certain legal steps. But the Act also protects the military parent when there is no agreement. It also requires the court to offer an expedited trial to take place before a parent deploys. What the Act Does: Parental Rights Before the Act, if a parent temporarily surrendered custody as the military often required, his or her parental rights were seriously compromised from the viewpoint of the North Carolina courts. Surrendering custody before the Act put a parent at risk for losing permanent custody to the non-parent. Giving someone else custody of your child could be seen as acting inconsistently with your constitutional rights as a parent. Our state law simply didn’t have any solution to the problem. Now, the Act allows judges to enter temporary custody orders for the sole purpose of protecting military parents while they perform their military duties. The deploying parent can nominate a third party who is a non-parent, such as a grandparent or even a close family friend, to have limited rights in his or her place while that parent is gone. What the Act Does: Special Problems Military deployment isn’t convenient for anyone, including judges who may not deal with military parents very often. Judges make custody orders detailed and specific with exact dates, exact times, transportation arrangements and other things that are likely to be disputed. The more details a custody order has, the harder it is for a parent to “interpret” it when there is a question. For judges, it can be complicated to figure out how the parent and child can remain close while he or she may not even be on the same continent, in a situation where no one necessarily knows the important details surrounding the deployment. The Act generally requires these temporary orders to “provide for liberal communication” between the child and parent while the parent is deployed, specifically including electronic communication such as FaceTime. It also allows the parent, or witness who isn’t reasonably available, the right to testify by phone or electronically. The temporary order must also “provide for liberal contact” between the child and parent while the parent is on leave or otherwise is available to see the child. This compliments our state child custody law which prohibits a court from looking at a parent’s past deployment or possible future deployment as the only basis in deciding what is in a child’s best interest. Instead, the court may consider deployment as one of multiple factors in deciding what is in a child’s best interest. Who is Eligible for the Protections of the Act? There are a number of requirements to qualify for the protections of...
read moreDoes North Carolina Recognize Quickie Divorces?
Does North Carolina Recognize Quickie Divorces? By Amy A. Edwards In North Carolina, parties seeking a divorce must show that at least one of the spouses has resided in the state for at least six months when either spouse files for the divorce. As of the date that a spouse files a claim for divorce, the parties must be separated for at least twelve months. When they separated, at least one of the spouses had to intend for the separation to be permanent. Why Do People Want Quickie Divorces? Besides the obvious desire to be legally single and/or remarry, there are several other reasons people get quickie divorces. There are those who want to get a divorce without the one-year separation, or those who haven’t lived in North Carolina for at least six months at the time the divorce is filed. Another incentive for quickie divorces is the payment of alimony. The deadline for filing an alimony claim in North Carolina is the entry of the divorce decree. If there isn’t an alimony claim already pending when the divorce decree is granted, it permanently expires and can’t be filed again. In other words, someone might try to slide the divorce past the other spouse with the hope that he or she won’t have time to file for alimony. The U.S. Constitution Our Constitution protects citizens with the right to due process of law. The courts only have the right to make rulings (i.e., legal authority) if they have jurisdiction. Without it, the court can’t issue valid court orders or decrees. A party to a lawsuit is entitled to legal notice and an opportunity to be heard and defend himself or herself. This usually occurs by service of the summons and complaint, when a sheriff hands a copy of the paperwork to the defendant, or the defendant signs to accept certified mail. Divorces by Other States When one U.S. state enters a decree, another state must generally accept it as valid. The Constitution requires one state to recognize it, giving it what is called full faith and credit. There are exceptions. North Carolina or any state can reject a decree of another state if that decree was fraudulent or the court did not have jurisdiction (i.e., the defendant wasn’t served with a copy of the paperwork). In other words, if it wasn’t valid in the state that issued it, then it isn’t valid here. Divorces Granted by Foreign Countries North Carolina can refuse to recognize a decree from another country if it was obtained by fraud or the court lacked jurisdiction. The Constitution doesn’t apply to other countries, so there’s no automatic recognition of their divorce decrees. Instead, a state court voluntarily chooses whether to recognize a divorce decree from another country. If it is recognized, North Carolina extends the courtesy of recognition by what is called comity, instead of giving it full faith and credit that would apply to decrees from other states. The first question is whether the divorce is valid where it was entered. This includes the basics of a lawsuit like legitimate domicile, meaning that the person actually lives in a place and the court has jurisdiction. In one North Carolina case, a wife traveled to the Dominican Republic for five days for the sole purpose...
read moreIs it Time to Change Your Child Support?
Is it Time to Change Your Child Support? By Amy A. Edwards Unless you have a child support agreement or order for older teenagers, you will probably ask the question of whether and when child support (CS) can be changed. Any time parents can reach an agreement instead of have a trial, CS can be changed so long as the legal documents are properly prepared. But more importantly, if there is no agreement to change CS, what are the grounds a parent can use to ask that the amount be changed? This article looks at that question in the broadest terms and doesn’t get into the many exceptions to the rules or other unique situations. CS is only permanent until a parent files court documents to change or modify it. Until a child is eighteen or graduates from high school, the court has the authority to change the amount, increasing it or decreasing it, as may be necessary over the years. Court Orders: 3 Years or Changed Circumstances? The courts almost always calculate CS by using a formula set out by the NC Child Support Guidelines, which generally use only the gross income of each parents, work-related child-care cost, the number of children each parent has, and the out-of-pocket cost for each child’s health insurance. If you have a court order or a separation agreement that was converted into a court order, either parent may file a motion to modify CS if three years have passed since the last CS order was entered. The law assumes that after three years, it is time to review CS, which will be changed if there is at least 15% difference between the old amount of CS and the new amount of CS based on the current Guidelines. If three years haven’t passed since the CS order was entered, then a parent must show there has been a significant change in circumstances since the date that the last CS order was entered. What Counts as Changed Circumstances? The general rule is that a change in circumstances related to the child (or children) is enough to change child support. If a parent changes jobs and the child’s health insurance cost increases by $300 per month, for example, the change in circumstances merits a change in child support. Another fairly straight-forward change in circumstances is when a parent has a significant and involuntary drop in income. In other words, if you pay CS and your income decreases for reasons beyond your control, you can reasonably ask for a reduction in CS. If a factory lays off employees, that is considered involuntary, and it would be a change in circumstances that would justify changing CS. On the other hand, if a parent reduces his or her income voluntarily, the court looks at the motive. If the parent is fired for stealing from an employer or quits a job to get out of paying CS, that is considered to be an act done in bad faith. When a voluntary decrease in income is done in bad faith, that parent can’t seek a new CS order based on changed circumstances. Separation Agreements: Is CS Unreasonable Now? If your child support was agreed upon in a separation agreement that was converted into a court order, the court assumes that...
read moreWhen Will the Judge Make a Ruling in my Case?
When Will the Judge Make a Ruling in my Case? By Amy A. Edwards This question comes up all the time. The short answer is that the judge makes a decision in your case whenever he or she makes a decision in your case. Attorneys don’t have the authority to push judges to make decisions in cases. The judges are in control of what happens in court, which includes the time it takes to do things. After a trial, the judge makes a decision on what is disputed in your case, which is called a ruling. The judge signs a written order and the clerk of court “enters” it with an ink stamp that reflects the date. On that date, it becomes legally effective or entered. In the Beginning During your trial, also known as a hearing, the judge probably took notes and/or admitted trial exhibits into evidence. Typical evidence in a child support case for a self-employed person includes three years of personal and corporate tax returns, bank records, credit card statements, invoices and other documents that prove what the monthly business and personal expenses. Then, consider the stack of evidence the judge has from all of the trials that particular week or two, and you can begin to understand why the judge’s ruling may take so long. After the trial is over, the judge will also need to review his or her notes and sometimes obtain a recording of the trial if it was complex or if enough time has passed that it is no longer fresh in the judge’s mind. Behind the Scenes The judge’s day job is to sit in court listing to trials, which leaves only limited unscheduled time to work on a ruling in your case. Judges have a few random days of office time that is scheduled, but not many. Often, the free time a judge might have to work on your case is when some other case that was scheduled for a trial settles or gets continued to a later date. If a two-day trial was scheduled and the parties sign an agreement three hours into it, the rest of the two days might be available to work on your case. Or, the rest of that time might be used to hear a trial that had been scheduled on the waiting list as a “backup” case so no court time is wasted. There is a severe shortage of judges, and the state (and funding) prioritizes court time for judges over office time. When the Magic Happens After spending the time to thoroughly review the evidence, the next task for the judge is making a ruling in your case. This phase might involve numerous math calculations. In an alimony cases, or in child support cases if a parent is self-employed, the judge is required to decide whether each party’s living expenses are reasonable, line by line, using each party’s detailed budget. If a particular expense is unreasonable, the judge must decide what a reasonable amount would be, and that amount is used to calculate the amount of alimony to be paid. Each line item of living expenses must then be included in the order. Deadlines: Local Rules In Pitt County, we have local rules concerning the procedural matters in family law cases. In Pitt County, the rules give judges deadlines of 14 to 45 days to...
read moreKeeping Secrets: the Attorney Client Privilege in North Carolina
Keeping Secrets: the Attorney Client Privilege in NC By Amy A. Edwards When someone is served with a subpoena to testify in court, he or she generally must go to the courthouse and testify in open court at the risk of being held in contempt of court, i.e., incarcerated, for failure to do so. And the witness must answer all of the questions from the attorneys while on the witness stand. There are only a handful of times when the court says a witness can’t be forced to testify, or when a witness may testify only about certain things. One of these times is when you tell your lawyer something that qualifies as attorney-client privilege (ACP). A privilege is a special right, the ability to avoid testifying, or testifying about a certain subject. North Carolina Privilege North Carolina has privileges for communications with physicians, nurses, clergy, psychologists, school counselors, licensed marital and family therapists, social workers, counselors, optometrists, peer support group counselors, agents of rape crisis centers and domestic violence programs and limited protection for journalists and spouses. [1] One case explains that the ACP is “. . . an established rule . . . that confidential communications made to an attorney in his professional capacity by his client are privileged, and the attorney cannot be compelled to testify to them unless his client consents.” [2] The Policy Behind It ACP fosters crucial trust between the client and the attorney. It is a time-honored tradition that encourages people to be honest with their attorneys so that the attorney can effectively protect that person’s civil rights. Otherwise, the attorney would potentially have to testify about conversations with his or her client. This is particularly important when a client who is accused of a crime faces the threat of incarceration or even death if there are pending capital murder charges. What’s Required to be ACP? There are five requirements for communication to be protected by ACP. [3] The first is that the attorney must have the relationship of attorney and client when the communication is made. If you are talking with your cousin, who happens to be an attorney, about your other cousin’s new boyfriend, that is not a privileged communication. Second, the conversation must be made in confidence. Generally, the only people who can be present during the conversation are the attorney and the client. Someone else’s presence while communicating with your attorney can break ACP. The third requirement is that the conversation has to be about the issue you are seeking legal advice about in the first place. Fourth, the conversation must take place in the course of giving or seeking legal advice for a proper purpose to qualify for ACP. In other words, the client needs to be seeking legal advice. If you see your lawyer at your daughter’s basketball game, and you have a discussion about the game, politics, the coach or other similar topic, there is no ACP. There’s no requirement for a lawsuit to be filed to have the benefit of ACP. But the proper purpose means the ACP doesn’t apply for a client and lawyer who are discussing things for an improper or illegal purpose, such as helping the client commit fraud. Fifth, only the client can waive ACP, and to keep it, he...
read morePutting 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...
read moreThe 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....
read moreA (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...
read moreHow 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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