Category: Court

Should You Settle or Let the Judge Decide?

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There are a number of ways to address child custody and support, alimony, and/or equitable distribution (division of marital property). Each case is different but there are similarities. Reaching an out of court settlement has the benefit of flexibility, allowing you to choose an arrangement you can live with instead of risking what a judge may decide. Compromise is a result of giving up some things to be sure you get certain other things. Privacy is also a benefit, keeping your personal matters out of the courtroom. Settlement by negotiation, mediation or collaborative family law is frequently quicker and less expenses.

However, settlement may not be in your best interest. An emergency may require immediate attention and a court order. No matter how badly one person may want to settle, the other may be completely unreasonable. Other times, the court’s ruling prevents a party from being taken advantage of where there is a significant power imbalance and/or domestic violence. On the other hand, going to court usually take a long time, and involves “busy work” that can be costly. The stress and emotional toll of court cannot be overlooked, not only on the parties but on the whole family in some cases. Your attorney is the best person to guide you through the maze, based on your goals and expectations.

Domestic Violence Protective Orders in North Carolina

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People with certain personal relationships may seek domestic violence protective orders (DVPOs). These include household members, parents of a child in common, spouses and former spouses, and others. DVPOs give law enforcement the ability to arrest a defendant if they have probable cause to believe he or she violated the order. Intentionally making a false statement to law enforcement that there is a DVPO when there isn’t one is a crime.

What Counts as Domestic Violence?

North Carolina law specifies three types of domestic violence which are summarized here. One is intentionally causing (or attempting to cause) bodily injury. Another is committing rape and/or sexual assault. The third type of domestic violence is placing a person in fear of imminent serious bodily injury, or continued harassment. As used here, harassment means it reaches a level so bad that it inflicts substantial emotional distress. This definition applies not only the victim, but also the victim’s family or household in some circumstances. Criminal statutes detail the harassment as conduct that is “directed at a specific person that torments, terrorizes, or terrifies that person and that serves no legitimate purpose.” NC Gen. Stat. §14-277.3A.

What is a DVPO?

A domestic violence protective order is awarded by a judge to protect a victim by prohibiting the defendant from assaulting, threatening, abusing, following, harassing (by telephone, visiting the home or workplace, or other means), or interfering with the victim and/or children who live with the victim. DVPOs can also order a defendant to stay away from the victim’s residence, school, place of employment and anywhere else that would be applicable. These are civil cases, not criminal in nature although the violation of a DVPO is a crime. As a separate matter, a defendant might also face criminal charges for assault on a female, battery, interference with a 911 call, child abuse or other charges.

Are There Other Remedies?

DVPOs can also require the defendant to attend and complete an abuser treatment program or prohibit him or her from purchasing a firearm for a period of time. The court has the authority to award temporary possession of personal property, including a family pet. An emergency DVPO might be awarded before the defendant has the opportunity to appear in court.

If a child is exposed to a substantial risk of physical or emotional injury, or sexual abuse, the court might award emergency temporary child custody. The court may require the defendant stay away from the child, to return the child to the other parent, or prohibit him or her from removing a child from someone’s care. The office of the NC Attorney General offers an Address Confidentiality Program, which is a mail forwarding program that adds another layer to the protections of domestic violence victims.

Help and Resources:

Resources in North Carolina (Victim Information Sheet) Or search online for form AOC-CV-323

Personalized Domestic Violence Safety Plan (checklist of things to do when facing violence in a relationship) from NC Dept. of Social Services. Or search online for form DSS-5233

Real Crisis Intervention in Greenville offers counseling, advocacy, information and referrals.

Laws change. This article is current as of 2023.

Child Abuse and Neglect in North Carolina

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By North Carolina statute, anyone who has reason to believe a child is being abused must make a report to CPS (Child Protective Services).  This also applies to suspected neglect or dependency upon the state when a child is abandoned.  The identity of a person who reports suspected child abuse is sealed by the State so that the parent or caretaker of the child will not know who made the report to CPS.  As long as you have a good faith basis to report child abuse, you do not have any legal liability if CPS decides no abuse has occurred. The name of the person reporting is strictly confidential.

The policy of the law is to trigger an investigation into a child’s circumstances so CPS can prevent potential harm to the child, or remove the child from an abusive environment. People sometimes hesitate to report suspected abuse because they feel the parent will be punished.  Reporting doesn’t always result in a finding that abuse or neglect has occurred.  Upon receiving a report of suspected abuse, there is an investigation by social workers and/or other trained and licensed professionals. If the CPS investigation finds evidence there is abuse or neglect, a lawsuit may be filed and the parent will usually be entitled to an appointed attorney to represent him or her in the case. Parents are then given access to resources that give them tools for dealing with their inclination to abuse their child. Punishment is not the goal in these civil (non-criminal) courts. The constitutional rights of parents must be respected, just as they are in criminal cases.

What Counts as Child Abuse?

In a perfect world, there would be a simple definition for child abuse.  But we live in an imperfect world where it is necessary to include lots of examples of abuse as we try to define it. Taken together, this patchwork of situations creates the legal definition of child abuse in our state.  It gives you a flavor of the sort of thing you must report. Fortunately, you don’t have to figure all of that out because it is the task of the NC Department of Social Services through CPS to decide exactly what fits into the definition of child abuse or neglect. All you have to do is err on the side of caution and call CPS when you see abusive behavior or evidence that indicates a child is in danger. An abused child is one whose parent, guardian, custodian, or caretaker:

  • Inflicts serious physical injury by other than accidental means.  This includes an adult allowing someone else to inflict injury on the child;
  • Creates a substantial risk of serious physical injury to the child by other than accidental means (or allows someone else to create that risk);
  • Uses or allows . . .  cruel or grossly inappropriate procedures or cruel or grossly inappropriate devices to modify behavior;
  • Commits, permits, or encourages the commission of various sexual and obscenity offenses;
  • Creates (or allows to be created) serious emotional damage to the juvenile shown by the child’s severe anxiety, depression, withdrawal, or aggressive behavior toward himself or others; or
  • Encourages, directs, or approves of delinquent acts involving moral turpitude committed by the child.

What are the Signs of Child Abuse?

For the signs of suspected abuse, see the list on the NC Department of Social Services web site. If you suspect a child is being abused in Pitt County, call 252-902-1110 during the day, and 252-830-4141 after hours. There is also information about the basics of reporting suspected abuse in NC, offered by the TEDI Bear Children’s Advocacy Center.

Businesses in NC Marital Property Division Cases

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In equitable distribution cases when the court divides marital property, a business ownership interest is an asset to be identified, classified, valued and distributed to (usually) one of them. Like any asset, it might be marital property or separate property and it may be distributed to either spouse if it is marital. The scope of this topic is very broad and cannot be fully addressed here. This article is a brief overview of the things experts, such as CPAs, might consider when performing a business valuation.

Business Entity: What is the Structure?

The way a business is organized impacts the value of it and the manner in which the business is taxed. Sole proprietorships are businesses owned and operated by an individual, created without filing any formal paperwork. Other businesses are created formally by paperwork filed with the NC Secretary of State.  Limited liability companies (designated with “LLC”) are more suited to ownership by an individual or a few people, and they usually require less paperwork. Corporations (designated with “Inc.”) are formal, and require special paperwork to be annually maintained, corporate officers to be elected and formal bylaws to be followed.

Why the Business Structure Matters

There is value added or subtracted from the value of a business based on many factors, including whether the business is publicly traded or owned by a few people as a closely held corporation (CHC).  CHCs owners are often family members who sign buy-sell agreements that require the co-owners to give each other the first right of refusal if one chooses to sell his or her share of ownership. The ability of an owner to sell his or her ownership interest is key because market value is based on what a willing buyer would pay a willing seller. In CHCs for example, willing buyers might require that only a few people, such as family members or business partners, get the first right of refusal in the event a spouse wants to sell. This can reduce the value of the business. If the business owner is a licensed professional, such as a doctor or lawyer, who works alone as a solo practitioner, the value is limited because the value of the practice depends on that one person whose license isn’t transferable. While a business or practice has a value, the actual professional license or business license that terminates on transfer is separate property. Businesses and any co-owners must be named as a party to the lawsuit for the court to have authority to order them to do things.

Factors That Impact Value

Name recognition of the business is known as “good will.”  For example, a local car dealership that has existed for 40 years has more name recognition, and may be more valuable than, a brand-new dealership. Consumers tend to more highly trust an established business. Tangible assets contribute to the value as well. Company assets might include equipment and office supplies, vehicles, bank and investment accounts, certain contractual rights, promissory notes and outstanding accounts payable to the company, inventory, and even real estate. Retained earnings are funds that remain in the business accounts, instead of being distributed or paid to the owner(s). This is critical when determining income for purposes of support to the other spouse, especially if it is unclear whether these funds are counted twice, once as business value and again as income. Company debts and expenses can include mortgages, lines or credit and business loans, insurance, state and federal taxes for the business and employees, payroll, retirement contributions for employees, health insurance, etc.  Business value is also impacted by potential liability in the event the business is faced with litigation (personal injury, unemployment claims, malpractice, bankruptcy, etc.) or the likelihood of anticipated litigation.

 

Is My Attorney Friends with My Ex’s Attorney?

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When I was a law student, I remember tagging along with my mentor for a trial and being shocked that he was talking and joking with the attorney who represented the opposing party before court. In my mind, court was a war and the opposing party was the enemy. It wasn’t until I began trying cases myself that I had a context for that event. Lawyers by definition are zealous advocates for clients. However, clients sometimes think that means an attorney must be rude, loud and hostile. When I became a lawyer, I realized that is not the case. In fact, cordial relationships can benefit both parties.
Professional Relationships
As “officers of the court” attorneys are expected to have a respect for everyone, including the opposing party. Professional relationships among attorneys are often long-term. A trend for attorneys is to choose an area of law to concentrate in, or even become a board certified specialist, as I am. As a consequence, more attorneys practice only family law, spending years or even decades litigating or negotiating cases with each other. And a smart attorney makes efforts to keep a cordial relationship with his or her colleagues.
Consequences 
But more to our point, attorneys who are professional and have a basic level of respect tend to cooperate when it is necessary, even though they are deeply divided on the disputed issue. They return calls to each other and try to determine whether there are issues that can be resolved outside of the courtroom. They can actually have conversations about the case instead of just “performing” in court. A frank conversation before the trial could lead to a stipulation to certain things, for example, giving the judge a written agreement saying they agree to those things. Such an agreement might reduce a three day trial to two days, benefiting both parties.
On the other hand, the attorneys lacking a cordial professional relationship with colleagues tend to be the same ones who drive up billable time with big displays of bravado even when doing so isn’t really necessary. That often translates into a long, hard and expensive road. When that type of attorney is in a case, I can tell my client to count on the case costing twice as much what it should cost.  There are cases that absolutely have to be litigated tooth and nail. But that doesn’t mean the lawyers have to needlessly inflame an already tense family situations, especially when children are involved. Seeing your attorney shake hands with the other attorney, or make small talk, is not a bad thing.

Medical Records in Family Law Cases

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In family law cases, a party may seek medical records for several reasons, perhaps to show whether someone is able to work in child support and alimony cases. Another common reason for requesting them is during child custody case to show whether a parent is physically able to care for a child, or whether a parent is mentally stable.

What Are Medical Records?

Medical records (MRs) are described differently in federal and state laws. The critical starting point is determining what MRs are actually being requested, and for what time period. Examples of MRs include pharmacy records, hospital records, therapy records, and patient files at the doctor’s office. MRs can include other sensitive information about STDs, substance abuse, pregnancy and abortion, and mental health history showing a person was suicidal or involuntarily committed to a mental hospital.

Seeking the Records

MRs are confidential. As such, a patient must generally give consent before MRs are provided to anyone. Attorneys typically request MRs in the civil discovery process, usually by requests for documentation to be produced. An attorney may also issue a subpoena to be served on the other party or to a third party, such as the doctor or the pharmacy.

The Law

MRs are privileged, meaning they are generally protected from being disclosed unless the patient consents or there is a court order requiring disclosure. The patient, doctor or other medical provider may file a motion objecting to the release of the MRs. The party seeking access to MRs then has the burden of proof to show they are “necessary to a proper administration of justice.” NC Gen. Stat. §8-53 et seq. There are federal laws such as HIPAA that hold the medical provider to certain standards, as well as state laws. There are special laws that protect mental health and substance abuse records.

What Can the Judge Do?

In Pitt County, the MRs are usually sealed and held by the clerk of court (or the judge) until the trial. Only if the judge finds the MRs are relevant to the issues in the trial, he or she then moves to the next step of deciding what to do with the MRs.  A judge might review the records in camera, which means privately in his or her office. The attorneys do not have access to the records unless the judges makes a ruling on whether some or all of the MRs are admitted as evidence.

After reading the MRs, the judge can deny or grant the motion to admit them as evidence. Or, the judge might limit the scope of the MRs. For example, the only records given to the attorneys might be for the last six months instead of the three years of records the attorney subpoenaed. For any MRs given to the attorneys, the judge has the authority to require the attorneys shred the records after the case is finished. Judges sometimes order the MRs to remain exclusively with the attorneys, not to be reviewed or copied by the clients. Even if the judge doesn’t require the attorneys to do anything specific with the records, attorneys are still bound by State Bar ethics rules to maintain confidentiality of records.

Is Your Life an Open Book? Quashing Subpoenas

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Subpoenas require witness to appear at the courthouse to testify and/or produce evidence such as “records, books, papers, documents, electronically stored information, or other tangible things.” (NC Subpoena form). Although people sometimes call it squashing, the motion to quash a subpoena has nothing to do with the yellow vegetable with the same name. Instead, it is a motion that can be filed if the person or entity being subpoenaed objects to the request for information and/or the presence of a witness in court or at a deposition. If the subpoena is quashed, that means the judge can render it void, or possibly limit it to make it more reasonable. Family law cases usually involve the spouse, former spouse and other family members as witnesses. But there are also third party witnesses such as teachers, doctors, social workers, neighbors, or co-workers. A witness might also be an alleged sexual partners of a spouse.

What’s Fair Game?

Most of the time in family law cases, the parties in the lawsuit must disclose information about assets, debts, and in some cases, marital fault. Subpoenas in property cases usually mean there are subpoenas issued for bank accounts, vehicle titles, retirement documents and anything that shows there are assets or debts. A co-owner of assets might be subpoenaed for information related to the value of a business.

Marital Fault

If you’re not happy about being subpoenaed by your girlfriend’s ex-husband, is that a ground for filing the motion to quash? Probably not, if her husband is alleging she engaged in an adulterous relationship with you, because that is an allegation of marital fault. Perhaps your credit card statements are also subpoenaed because you met her on a social networking dating web site that will appear on the statement. It might well be fair game too. On the other hand, a judge might grant the motion to quash the subpoena if the case involves the division of marital property, which involves only financial fault, not marital fault involving an intimate sexual relationship.

Medical Records

If your ex has served you with a subpoena to produce your medical records, those records may or may not be required by the judge. Medical records are privileged, meaning the general rule protects you from disclosing them. After all, they document everything from your weight, medications and illnesses, to STDs and possible substance abuse. As with any rules, there are some exceptions. The judge in a child custody case might deny your motion to quash the subpoena because he or she makes a ruling that the best interest of your child overrides privileged medical records. If you have an alcohol addiction, for example, the judge might very well deny the motion to quash the subpoena because your child’s safety is at issue. If you have a pending child support case and you are alleging you are unable to work, the judge probably will require you to provide your medical records, but might limit how far back the records must be provided.

The Rules in North Carolina

Anyone objecting to a subpoena has a legal duty to appear at the time indicated on the subpoena with the requested items unless the judge enters an order saying otherwise. In NC, the subpoena form itself states the protections and lists objections a judge will consider if you make a motion to quash a subpoena. Grounds to file a motion to quash the subpoena include avoiding undue burden or expense complying with it, allowing reasonable time for compliance, disclosing privileged or other protected information and disclosing trade secrets. Subject to a judge’s interpretation, a subpoena cannot be unreasonable or oppressive, and cannot be outside of certain legal procedures. A witness may be “reasonably compensated for the cost of producing the records, books, papers, documents, electronically stored information, or tangible things specified in the subpoena.” (Subpoena form).

The Spirit of the Law: Enforcing Orders in Family Law Cases

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When someone willfully disobeys an order, the other party has the right to file a motion asking the court to hold him or her in contempt of court. If the judge decides the person has willfully disobeyed the order, he or she has numerous remedies to correct the problem, up to and including incarceration. When it comes to enforcing court orders, there is a distinction among attorneys and judges concerning the letter of the law and the spirit of the law. The letter of the law is the actual printed word used in the court order. The spirit of the law measures how sincerely someone makes efforts to comply with the order when the written terms of the order (i.e., the letter of the law) is not necessarily clear.

The Letter of the Law

Suppose a parent is obligated by court order to pay $750.00 per month in child support. That is the letter of the law, the writing that spells out what is required. Sounds simple, right? Everyone knows what is required. But what happens if the parent was just laid off from his or her job for reasons other than employee performance? The court order does specifically say what happens in that situation. The letter of the law in that scenario isn’t necessarily obvious.

The Spirit of the Law

Court orders in family law cases can’t spell out what a person must do in every single circumstance or contingency that might arise. This is especially true when orders are in effect for years and years, such as child custody cases. A child custody order might specify things clearly when a child is four years old, but not so clearly when the same child is fifteen years old. Let’s assume the unemployed parent in our example files a motion to reduce the monthly child support obligation, based on his or her job loss. It may be five or six months before the case reaches a judge for a trial, but the child support order remains in effect unless and until the judge changes it. The parent who truly cannot make the entire child support obligation of $750.00 per month should in good faith pay as much as he or she possibly can.

For example, if the parent received a $3,500.00 tax refund after filing the motion to reduce support, the court will expect that parent to contribute some amount of that money to the other parent for child support before the trial, depending on that parent’s situation. Paying $600.00 a month, which the parent actually has the ability to pay in our example, instead of paying nothing, is an example of what the court usually expects from parents in this scenario. Doing so follows the purpose of the order, the spirit of the law, which is support of a child. Following the spirit of the law goes a long way when seeking the benefit of the doubt from the judge who is enforcing the order. Ignoring the spirit of the law is done at your peril.

Can’t We Just Pick a Date of Separation and Get Our Divorce?

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The short answer is no, you can’t choose a date of separation. In the real world, efficiency and common sense would suggest that you could. But this is not an agreement to apply for “services” from the government. It is a lawsuit, and a judge must use the law. Divorce is a legal status, similar to a legal status of biological parent in a paternity case, for example. Each state has laws dictating how long a married couple must be separated before they are eligible to divorce. Here in North Carolina, the law requires a one-year separation. This should not be confused with our residency requirement. It requires at least one spouse to live in this state for six months before he or she is allowed to file a claim for divorce, even if the parties have already been separated for a year when one spouse moves here.

All Divorces Are Lawsuits

It can be easy to forget that even uncontested divorces are filed by a plaintiff, served on a defendant, and ruled upon by a judge. In fact, most people don’t even have to be in court. Except for incurable insanity, the only ground for a divorce in North Carolina is a one-year separation. This requires that at least one spouse intends for the separation to be permanent, although there is no requirement that the lawsuit say which spouse intends to remain apart. Examples of one-year separations that don’t fit into this category are couples who are only separated by military service or incarceration. They are not separated unless one spouse intends to remain separated (i.e., that person does not want to move back home when no longer physically separated).

The divorce complaint, the document that starts the lawsuit,  cannot even be signed until the day after the year has passed. When you sign the complaint, you do so under oath, under penalty of perjury, which is a crime. Worse yet, if you lie about the DOS, your fraudulently obtained divorce can be set aside (voided) because you were not separated for one full year.

Why Do We Have to Wait a Year?

The government doesn’t want you to have a fight with your husband or wife, separate for a few days or weeks, get divorced and then reconcile and remarry. Many lawyers, myself included, believe the length of separation is too long. Some states require a longer wait only if the couple has children, and let the non-parents divorce much sooner. Although many believe the waiting period is excessive, it is the law and we must all obey it. There are plenty of others who believe one year isn’t long enough. Our state laws used to require a two-year waiting period. Not too long ago, there was a proposed “Healthy Marriage Act” that would’ve restored the two-year waiting period. In fact, it would have required counseling of some sort for parents and non-parents alike.

Can We Just Stay on Opposite Ends of the House?

Although the idea of separating in the same house is a clever one, it is inadequate. A separation requires living under two different roofs. This can be difficult for couples who don’t have enough money to establish two separate homes. But if separate homes weren’t required for a separation, it would be impossible to clearly identify who is or isn’t separated. Your spouse could claim the one-year separation had already occurred, and you could have a sheriff serve you with a divorce complaint out of the blue. Brand new parents need the whole nine months to figure out what they are doing with this new legal title of parents. And, so it is with divorces. You have to figure out medical insurance, where you will be living for the immediate future, your short-term finances, sometimes your employment, and perhaps what to do about your children. On the upside, the clock no longer stops ticking if there are “isolated incidents of sexual intercourse between the parties . . .” In the past, you could be separated for a long time but any sexual intimacy restarted the clock for one-year separation.

See NC Gen. Stat. §50-6

How a Contract Magically Becomes a Court Order: Incorporation

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In the world of family law in North Carolina, there are three ways to address agreements: contracts, court orders and incorporation.

Contracts

Contracts are agreements signed by the parties, such as a separation agreement. If someone violates the contract, it is called breach of contract. A contract is enforced by a “specific performance” lawsuit, asking the court for an order requiring him or her to perform the specifics of the contract, such as signing a deed, refinancing a mortgage obligation, etc. A contract generally can’t be changed by the court. However, the court always has the authority to change anything related to child custody and support until a child is 18 years of age, regardless of what the parties set out in a contract.

Court Orders

Court orders are only available after a lawsuit has been filed, and they must be signed by a judge to be valid. The best part about a court order is the remedy. A party who violates the court order is subject to being held in contempt of court for failure to obey the court order. The contempt power of the court gives the judge discretion to do whatever he or she sees fit to enforce the order, depending on the circumstances presented. Although they don’t usually do so until after someone demonstrates they will remain obstinate, judges have the authority to incarcerate someone who continues to disobey court order. Orders can be registered in any state to be enforced with the full faith and credit of another state.

Incorporation

Our state has what is called incorporation, a special process by which a separation agreement “magically” becomes a court order once a judge signs it. But a judge cannot sign anything until there has been a lawsuit filed. Incorporation is done only by agreement, which is usually mentioned in a separation agreement. After a full year of separation has passed, either spouse can file for a divorce. When the judge signs a divorce decree, he or she also has the authority to incorporate it into the decree, permanently making it an order of the court.