A Road Map For Getting to the Finish Line in Your Case

At the beginning of a case, we usually focus on documents, lists of assets and debts if marital property exists, and detailed budgets. That documentation is necessary to evaluate your case and consider what you are entitled to, or what you must pay or divide. With so much “busy work” it might appear as though we lose sight of the main question, which is . . . how will all of this be done? There are five typical methods to reach the finish line in North Carolina.

Method #1 – Negotiation

Negotiating can happen at any point, even after a trial until the judge signs an order. When a client has all the necessary information about the assets and debts, one good strategy at the beginning of a case is to prepare a proposal, such as a separation agreement. After the other side responds, you will then see how far apart you are from reaching an agreement. There is no way to force the other side to negotiate. It is done only by mutual agreement. After a lawsuit is filed, the proposal might end up being an agreed upon court order the judge signs without a trial.

Method #2 – Collaborative Family Law (CFL)

Collaborative Family Law cases are appropriate in select cases when both parties agree to participate. With this method of finalizing a case, there is a series of meetings with both attorneys and clients in one room. Instead of adversarial negotiation, the parties and their attorneys make a commitment to work together to figure out solutions for their disputes. They also sign an agreement requiring them to be honest and forthcoming about the matters they will discuss. The system of checks and balances requires the pares to hire new attorneys if one of them decides to ligate. That way, both pares have a financial investment in working together in good faith. The spouse with beer financial resources can’t try to starve out the other spouse without his or her own significant financial consequences. Settlements can also be kept private, especially because CFL cases will not address marital fault.

Method #3 – Mediation

In Family Financial Mediation, the parties and their lawyers are in separate rooms and the mediator facilitates the negotiation going back and forth between the parties. The mediator’s only job is to help the two sides find common ground. The decision of whether to settle the case is made only by the parties. In most NC counties, mediation must occur before the trial is scheduled people may choose to mediate before a lawsuit is filed. If an agreement is reached in mediation, the parties sign a handwritten agreement, which is immediately binding although it is usually typed, edited and formalized after mediation. The pares may choose to maintain their privacy in mediation.

Method #4 – Arbitration

This option is not widely used in our area, but it has some great features. If negotiation is unsuccessful and the case is headed to court, in family law arbitration, the pares essentially pay for the benefit of privacy and the ability to have a case tried by an arbitrator promptly instead of waiting for months and months for a case to be heard in court. In this scenario, instead of having a trial before a randomly assigned judge, they are also assured the decision-maker is one both parties deem best suited for the type of case at hand. The arbitrator makes a ruling in the case, and it is finalized as required by law. Settlements can also be kept private because arbitration can be done in an office of one of the attorneys.

Method #5 – Litigation

Litigation is the lawsuit process. This option is useful when the parties truly do not agree. Court is the only way to force something to happen, especially when emergencies demand the protections of court orders. A parent might seek an emergency order if there is “substantial risk of bodily injury or sexual abuse or…the child may be abducted or removed from the State of North Carolina for the purpose of evading the jurisdiction.” NC Gen. Stat. §50-13.5. Another example is a family member seeking a domestic violence protective order. However, there are plenty of times court should be a last resort. There’s no secret that ligation is tedious, slow, expensive and inefficient. It can be emotionally devastating for all the family members not just the named pares to the lawsuit. There is no privacy in the courtroom. In fact, the NC Constitution gives the public the right to attend civil court proceedings. Although there a limits to that right, they are exceedingly rare in family court cases. 

Amy A. Edwards is a family law attorney in Greenville, NC, 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 January 2017. www.AmyEdwardsFamilyLaw.com © 2017.