Author: Amy Edwards

What Is Family Court?

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In some North Carolina counties, including Pitt County, there is a specific Family Court Program devoted to cases involving child custody and support, alimony and equitable distribution (division of marital property). In Pitt County we have a Family Court Administrator and two Family Court Coordinators. I’ll call the program FC for Family Court.

What’s the Role of Family Court?

FC operates behind the scenes kind of like air traffic controllers, herding judges, attorneys, unrepresented people and miscellaneous others through the court system in family law cases. Their objective is to help everyone navigate the court system. Contrast FC with clerks of court who are frequently in the courtroom keeping track of exhibits, swearing or affirming witnesses to testify, and having documents available for the judge during the trial. Judges have staff members who support the judges. However, judges preside over more than just family law cases. For example, judges handle cases in criminal court and traffic court.

What Does Family Court Do?

FC follows each case and enforces the local rules that apply to the procedures attorneys, parties, and judges must follow. In consultation with the judges, FC has some discretion to make certain administrative decisions, such as facilitating routine requests to continue cases. This helps keep the process moving along a bit quicker. FC monitors the completion of cases, prodding them to be resolved one way or the other instead of leaving them linger unresolved if people drag their feet. Annually, the North Carolina Judicial Branch, attorneys and citizens have to advocate strongly to keep FC programs from being cut out from the state budget. Some people don’t realize the money saved by the state and time saved by the judges by employing additional employees to operate Family Court. After all, nobody gets married (or has children) expecting to be a party in a lawsuit in the midst of a crisis. They deserve a system that is responsive and gives them a timely resolution.

The Benefits of Family Court

The old system not only wasted judges’ time, it wasted attorneys’ time, costing clients more. Attorneys would have to repeatedly prepare for court every couple weeks as new events and incidents in the family arose because the case might be heard the next week. FC allows attorneys to better prepare our cases and minimizes inconvenience to parties and witnesses who were often placed on standby for months as cases were usually continued every two weeks. Although many people don’t recognize it, taxpayers save money with FC. Staff time is much less expensive than that of the judges. The fewer hours a judge spends dealing with things like scheduling trials, the better.

Pitt County modernized our local court rules and created consistency by developing certain forms for routine matters. Because FC cases are assigned to judges, each judge knows the family dynamics. That alleviates the need for a judge to plow through a file (sometimes five or six inches thick) to familiarize himself or herself with the family before every hearing. This not only makes court more efficient, saving the court resources, but it gives the parties better outcomes.

What is a Legal Separation in North Carolina?

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In our state, the term “legally separated” is a term of art used by attorneys, and misused by many non-attorneys. This legal separation is a decree made by a judge after a special trial based on marital fault. The court enters an official decree, stating that you or your spouse was wronged and declaring you separated. Why do all of this to separate? Because people are correctly reluctant to move out of the family home for fear of committing abandonment. Marital misconduct (marital fault) can easily cause a great deal of harm to a spouse’s case. This process of a judge declaring a person to be legally separated is a rare event indeed, but it is still alive and well in our state.  In legal terms, this process of declaring people to be separated, but still married to each other, is called a divorce from bed and board.

What people usually mean is a “separation” that will allow them to get divorced after a year of separation, Two main things are required to be separated for purposes of a divorce. First, the husband and wife must not live together in the same residence for at least one year. Living in the same residence in different parts of the house is not adequate. Second, either the husband or the wife must intend for the separation to be permanent. Note there is no requirement that both intend the separation to be permanent; only one person must. If they are living separately but neither intends to be separated, such as those separated by military service or extensive travel, they are not separated for the purpose of getting divorced.  There is no legal requirement for any documents to be written or signed for people to be separated.  The fact that people live apart, and one of them intends the separation to be permanent, is sufficient to be separated for the purpose of filing for a divorce after one year has passed.

Clients sometimes ask me if they can agree to say they have been separated for a whole year, when they have only been separated a few months. The answer is always NO. Alleging untruthful things in a divorce complaint (the document that generates the lawsuit) constitutes the crime of perjury, whether one person commits perjury or both do, regardless of whether you agree to do so. The process of a judge entering a divorce based on one year of separation is called an absolute divorce.  Once this type of divorce is entered, each person is legally free to remarry if he or she chooses to do so.

 

 

What’s Involved With a Divorce?

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In North Carolina, marital fault is not required to obtain a divorce. In most circumstances, the parties must be separated for at least one year before either party may file a lawsuit for a divorce. A divorce severs the legal relationship between two married people, and impacts many legal rights and responsibilities. There is no common law marriage in our state, although North Carolina will recognize one if it was validly performed in a state that does permit common law marriage. A divorce is a ruling on the legal relationship between you and your spouse. A divorce makes a critical difference in many important situations, such as health insurance, the way you file tax returns, and retirement and social security benefits, to name a few.

A divorce also controls when you have the right to file claims for alimony and marital property division, your rights to jointly owned property, including survivor rights, and others. If a married person changed his or her name, the divorce decree can restore the use of the original birth name or (under some circumstances) a former last name to that person. Alternatively, a person may file court proceedings requesting the use of the original or former name after the divorce should he or she later decide to do so.  When someone changes names, he or she should report the change to the proper government entities, such as the Social Security Administration and the NC Division of Motor Vehicles. If a lawsuit for a divorce has been filed, there are strict deadlines for filing responses to the lawsuit.  Certain marital rights are permanently lost if claims are not filed by the time a judge enters a divorce decree. ALWAYS consult with an attorney as soon as possible to discuss your rights in the event a divorce lawsuit has been filed.

 

Common Law Marriage: Did You Accidentally Get Married?

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Common law marriages are based on an agreement between the parties, without any paperwork or a formal ceremony performed by a person vested with authority to perform marriages. In my practice, I have met a number of people who believed they were “common law married” in North Carolina. Some people have the mistaken notion that if a couple lives together for some period of time, then the relationship is magically transformed into a legally valid marriage. Each state has laws that list the specific requirements of a marriage.

North Carolina is one of many states that does not permit common law marriage. A couple might have lived together for many years and even held themselves out as “husband and wife” but unless they have undergone the legal requirements of marriage, they were not legally married in this state. No doubt this is great news to some clients, who thought they “accidentally” got married, but bad news to others. And speaking of accidental marriage, much to the dismay of some of those same people, there is no accidental divorce (i.e., common law divorce).

What About Common Law Marriage From Other States?

There are U.S. states that recognize common law marriage. Some of those states are Western states that historically had to make a “do it yourself” marriage available to residents because there was such a small population that ministers or magistrates did not live in a town or close to one. Most of the settlers living in the Western U.S. did not want to “live in sin” without the benefit of marriage, so common law marriage in the United States was born. If a couple is validly married in another state that recognizes common law marriage, only then will North Carolina give their marriage decree full faith and credit, recognizing it as a valid marriage.

What is perjury?

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Perjury was deemed illegal by inclusion in the Ten Commandments, the first legal system, in Exodus 20:16. According to the Oxford Dictionary, the word perjury comes from the Latin word perjurium meaning false oath. In our state, perjury is defined as an intentional false statement under oath in court, in a deposition, or in matters the law requires a witness to be sworn.

Swearing or Affirming (Administering Oaths)

The person testifying in court swears to “tell the truth . . . so help me God.” Some people interpret the Bible as forbidding swearing.  As an alternative to swearing to tell the truth, a witness may choose to be affirmed. The oath is given exactly the same except that the word “affirm” is substituted for the word “swear” and the words “so help me God” are deleted. In our state, the law allows judges, clerks of court, notaries public and a few others to swear in or affirm a witness (i.e., administer an oath).

When Does Perjury Happen?

Most people know that when they appear to testify in court, they must tell the truth, the whole truth and nothing but the truth, but what does the rest of this definition for perjury mean and what are the other types of perjury? In a deposition, a witness is subpoenaed to a location outside of court to give testimony that will be typed up by a court reporter. Such a report may be used in court, and is treated the same way as courtroom testimony when it comes to perjury. Another way someone commits perjury is when the law requires something to be sworn. Frequently, this is when a statement is made in writing that is signed under oath, administered by the notary public. For example, in a lawsuit for marital property division or alimony, the documents filed at the courthouse require a notarized signature.

What Does This Have To Do With My Case?

The most important consequence of perjury is that it is a felony. NC Gen. Stat. §14-209 (as of the time of writing this article).  In fact, an attorney is an officer of the court who has taken an oath. When an attorney learns of the perjury, he or she has a legal duty to the court to immediately address it in court. The attorney may ask for a recess to speak to the client, or might have to make an emergency motion to withdraw as counsel, which indirectly tells the judge perjury is an issue. Aside from risking a felony conviction or your attorney making an emergency motion, your case is likely ruined.

People sometimes forget the judge hears testimony all day every day and is uniquely positioned to notice body language and other indirect or subtle signs of deception. Like judges, the attorney makes a living evaluating the truthfulness of a witness. He or she may cross examine you based on the lawsuit paperwork you have signed under oath. There may be a document or other proof he or she may ask you to read on the stand that is proof you are not being truthful. One consequence of untruthful testimony is that you lose your credibility and the judge will give the other party the benefit of the doubt. You lose.

 

What is a Deposition?

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What is a Deposition?

A deposition is essentially when a person testifies outside of a courtroom. The witness, who may be subpoenaed, is usually required to go to the office of one of the attorneys where a person called a court reporter also attends. The reporter prepares a written statement to be distributed to both sides. Each party must pay for a copy, which is usually charged at a rate per page, along with a sitting fee. The transcript prepared by the court reporter functions as sworn testimony.  It is sworn because the witness swears to tell the truth, the whole truth, and nothing but the truth. Rarely can anyone tell how long the deposition will last unless special arrangements have been made in advance by the attorneys.

Although the atmosphere is relaxed compared with the courtroom, the deposition cannot be underestimated. The written statement of testimony may be used for many purposes, one of which is court.  It can make or break a case.  Lawyers also get a preview of how the person will testify, and whether they seem to be credible or articulate. Like court, depositions are subject to many rules.  Most of the time, the objections must be addressed at the time of the trial.

Taking Care of Business: Child Support When a Parent is Self-Employed or Owns a Business

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Our state’s child support guidelines calculate child support obligations based on gross incomes of parents, any work-related childcare, health insurance and several other factors. When a parent has a salary and W-2 statement, it is usually easier to determine that parent’s gross income. A parent who is self-employed and/or owns a business has at least some control over his or her gross income. For this article, assume a self-employed person is the same as a business owner with 100% ownership.

NC guidelines define gross income for a self-employed parent as “gross receipts [of the business] minus ordinary and necessary expenses required for self-employment or business operation.” That means the court would calculate a disputed income by first looking at the total income generated by the business, then subtracting the business expenses. Business expenses claimed on tax returns may be perfectly acceptable to the IRS, but the court may or may not deduct them when determining income for child support. That is the tricky part.

But there are a few things that are clearly not subtracted from gross receipts, such as the accelerated component of depreciation expenses. The court considers each of the claimed business expenses and decides which will or will not be subtracted from the gross receipts generated by the business. Fringe benefits paid for by the business “are counted as income if they are significant and reduce personal living expenses.” Examples of these types of expenses that are considered income to the parent who is self-employed include use of a company car or free housing.

Are Bad Parents Rewarded in Custody Cases?

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In the real world, people’s morals form the foundation of their beliefs, of right and wrong. If someone does something wrong, there is an expectation of consequence or penalty. A parent punishes a child for bad behavior. Or, relatives might disown each other and spend decades estranged from one another because one of them wronged the other. Paying someone back, or washing your hands of him or her for “bad” behavior may be totally justified in the real world. In fact, that is usually the reason a couple separates.

Judges in custody cases look at things differently. It helps to think of court as its own little eco-system. Courts are based on the law, plodding through a checklist of legal considerations that must be made. These considerations are not necessarily based on right and wrong. Judges start from the premise of no-fault, similar to no-fault divorces. Why you separated is irrelevant to the judge if you obtain a divorce in North Carolina. Bad behavior of one parent matters little unless it relates to the safety and well-being of the child.

How Bad is Bad?

As with most of the matters in family cases, it is a matter of degree. Clients sometimes ask if the court will deny visitation or terminate the other parent’s rights. The answer is no, in the vast majority of cases. The degree of bad behavior that is required to do so is extreme. The courts will not deny visitation because the parent is mediocre, or because he or she is a poor parent. It is likely he or she will have visitation and the question becomes a matter of how frequently and for how long. If the other parent behaves poorly, the judge may try to fix it. For example, a judge can order a parent not to smoke in the home or car when the child is there. A judge might also require the parent to have no alcohol in the home, or go to counseling to address anger issues, depression, or other mental health concerns. A judge can require supervised visitation, depending on the family circumstances.

Do Judges Reward “Bad” Parents?

Bad behavior will not help the other parent’s case, but don’t expect the judge to say he or she blew it, and therefore, visitation is denied. Judges want children to have both parents if at all possible. For example, a parent who has not played an active role in a child’s life may return a few years later and persuade a judge to give him or her a second chance to gradually create some sort of relationship. This doesn’t mean a judge will give that parent custody, just the opportunity to see if a bond can be created or renewed. To the judge, the estranged parent isn’t being rewarded even though it feels like it. You will always be a parent and you will also be loved. But the judge’s goal is to see if the other parent can successfully play some role and give the child two parents.

 

Untying the Knot: Alimony in Our State

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The law in North Carolina defines alimony as payment for the support and maintenance of a spouse or former spouse. A judge may order it in monthly payments, a lump sum and possibly by payment of certain expenses, such as health insurance. Temporary alimony is called post-separation support (PSS), which the court may award on a temporary basis at the early stage of a lawsuit, pending the alimony trial.

The Background & Controversy

The concept of alimony is somewhat controversial. Although men are free to seek alimony if they meet the legal requirements of dependency, it is overwhelmingly women who are financially dependent. Those who don’t think alimony is necessary point to the changing role of women over recent decades. They argue alimony keeps financially dependent women in a dependent position, and discourages them from becoming more financially independent. Proponents of alimony see it as a form of compensation to protect the spouse who, for a number of years, limited or forfeited a long-term earning capacity and the associated contributions necessary to grow a retirement. A spouse might make individual financial sacrifices in exchange for the betterment of the family unit, often when caring for the children. This allows the other spouse to devote his or her attention on a career, perhaps acquiring a degree, traveling or relocating on a regular basis, or creating and/or operating a small business.

Who Can File an Alimony Claim?

In our state, the law allows either spouse to ask for alimony if that person meets the other requirements. The most important requirement is financial dependency by one spouse, who is financially supported on the other. There must be a significant difference in their earned incomes, and/or unearned incomes such as investment dividends. If the spouses have the same level of income, there is no supporting spouse or dependent spouse, both of which are mandatory for the court to award alimony.

How is It Calculated?

North Carolina judges have a great deal of discretion when ruling on the amount of alimony to be paid, and how long it must be paid. There are no guidelines for alimony, as there are in child support cases. For each party, the judge reviews a financial affidavit, which is essentially a budget that includes living expenses and debts. From that, the court will decide the fairest way to address alimony, taking into account the needs of both parties. Judges are required to consider any evidence of marital misconduct, if either party offers it. Other considerations judges must consider include the ages and the physical, mental, and emotional conditions of the parties, as well as the length of the marriage, and any contribution of a spouse as homemaker. Alimony has specific tax consequences to be considered.  Another important consideration is the standard of living the couple established during the marriage.

When Does Alimony End?

The court sometimes directs alimony to be paid for a specific time period. If a spouse is in school earning a degree, or is only a few years away from drawing retirement, judges might tie the alimony award to coincide with these events. It is likely a judge will order permanent alimony if the parties have been married for over twenty years. There are several grounds that can terminate alimony sooner than what the judge orders.  When the recipient of alimony remarries, alimony ends. Odd as it sounds, alimony ends when either party dies. This means the estate of the deceased spouse has no ongoing alimony obligation, nor can the estate of the deceased spouse be entitled to it.  Alimony will also be terminated if the court finds that the alimony recipient lives with a romantic interest (i.e., cohabits).  The law defines “cohabitation” as “the voluntary mutual assumption of those marital rights, duties, and obligations which are usually manifested by married people, and which include, but are not necessarily dependent on, sexual relations.” NC Gen. Stat. §50-16.9.