Category: Court

What Do Judges Consider in Alimony Cases?

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The factors guide judges in reminding them of the most important things. Either spouse may seek alimony if he or she earns less than the other in North Carolina, although there’s no specific dollar amount that determines by how much less. While we have guidelines in child support cases that compute an amount based on incomes and certain child-related expenses, we don’t have anything of that nature for alimony. Each party prepares a budget as a trial exhibit, which includes income and living expenses. If the judge awards it, the amount of alimony and how long it will be paid is discretionary.

Alimony Factors: Incomes/Benefits

NC judges must consider a list of factors in alimony cases. The first factor to consider is how much income each spouse has, and sometimes what a spouse has the capacity to earn. Also considered is unearned income, which is not shown on a W-2 statement, such as dividends, rents, retirement payments, disability, social security payments and employment benefits such as medical insurance (and/or dental and vision insurance), retirement benefits, and marital property and debts.

Alimony Factors: Each Person’s Situation

The court considers each spouse’s individual circumstance, education, age, physical and mental abilities, and emotional conditions. For example, a 25-year-old spouse and a 60-year-old spouse will be treated differently based on medical conditions and the ability to work. Their needs and expectations, such as the anticipated date of retirement or going back to school, also vary. Marital misconduct of either spouse may also be considered.

Alimony Factors: History of the Marriage

The court also looks at the standard of living that the parties established during the marriage. How long the parties were married and the contribution by one spouse to the education, training, or increased earning power of the other spouse are other factors. One party might have kept the home-fires burning for the last ten years, caring for the children while the other devoted his or her energy to obtaining a degree or advance in a profession, improving the family income. In fact, the statute also requires the judge to consider the “extent to which the earning power, expenses, or financial obligations of a spouse will be affected by reason of serving as the custodian of a minor child.”

Alimony Factors: Miscellaneous

The court looks at family obligations, such as paying child support for children with another parent, or alimony to a former spouse. Courts usually have the trial for equitable distribution (the division of marital property and debt) before the alimony trial. This is because the judge will look at who kept which assets, and who is responsible for various marital bills, which is important when determining each party’s reasonable expenses. If someone brought assets into the marriage, the court has the right to consider. The federal, state, and local tax ramifications of the alimony award are legitimate factors for the judge to weigh in making an alimony award.

The factors are meant to guide judges in reminding them of the most important things to think about when deciding what to order in alimony cases. The flexibility is there but just in case, the statute also tells judges that they are free to consider “Any other factor relating to the economic circumstances of the parties that the court finds to be just and proper.” NC Gen. Stat. §50-16.3A.

Have You Reconciled With Your Ex?

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Besides obtaining a divorce, the date a couple separates can have a significant impact on equitable distribution of marital assets and debts, child support and alimony. When a married couple decides to call it quits, there is some date they separated.  But when is it? The answer is not always as simple as it sounds. There is a myth that people can’t be separated for purposes of divorce until they have something on paper. That is not the case. In North Carolina, if parties stop living together, and at least one intends the separation to be permanent, they are separated. Physically living apart is a requirement, however. Living in the same home in different rooms or out-buildings such as the garage or “man cave” is usually not enough. Despite what was portrayed in the War of the Roses movie when one duct taped a line down one-half of the house, you can’t do it that way here if your goal is to seek a divorce.

The State Policy

From the viewpoint of the public policy behind this one year waiting period, marriages should be fostered and divorce should be discouraged to some extent.  A waiting period gives spouses time to cool off after a major dispute. The courts would no doubt be much busier if there was no waiting period and either party could apply for a divorce on Monday morning after a fight on Friday night. There is debate about whether the year-long waiting period prevents divorces, thereby preserving marriages. The requirement that at least one of the parties intend for the separation to be permanent makes sense when you think about happily married people who are physically separated because of military service or because one of them spends an extended period of time in the hospital, for example.

What If We Try to Work Things Out?

Another question in determining whether you are separated for the purpose of divorce is whether you have made any efforts to reconcile. If a couple reconciles, meaning they return to the husband and wife relationship they had before the separation, they are no longer separated. If they reconcile and later decide to separate again, the one year wait begins from that second date of separation. Years ago, the one year period of separation required to seek a divorce would start over if the parties had intercourse.  Now, the law says that an isolated act of intercourse will not start the clock over again but beyond that, it is not always clear at what point they reconciled or separated. Reconciliation and making efforts to work things out can lead to one of the spouses moving back into the home, which is almost always viewed as reconciling in legal terms. There is no black and white answer on whether the actions of a couple between those two extremes would require the one year waiting period to begin all over again. The court looks at the circumstances of each case when the date of separation is disputed.

Getting Attorney’s Fees in Family Law Cases

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In North Carolina family law cases, a party may seek attorney’s fees in court cases involving child custody and support, and for temporary and permanent alimony, among other claims. With a couple of rare and unique exceptions to the rule, attorney’s fees aren’t usually available to be awarded by the court in equitable distribution cases for division of marital assets and debts.

Child Custody and Support Claims

The law permits parents to ask the court to award attorney’s fees in child custody and support cases, including cases when a parent files a motion to modify the order that is already in place. There are three requirements. First, the person asking for fees must be an “interested party” meaning he or she is someone entitled to exercise the legal right to participate in the lawsuit. Second, the person must be acting in good faith, not filing a frivolous claim. The third requirement for the court to address is whether the person “has insufficient means to defray the expense of the suit.” In other words, the person had to turn to the courts to get help, which has created a financial hardship.  If the claim was for child support there is a fourth requirement. The parent who should be paying support “has refused to provide support which is adequate under the circumstances.” If the parent files a frivolous claim, the court is also entitled to award fees to the other parent. NC Gen. Stat. §50-13.5

Alimony and Temporary Alimony

If the court awards alimony or temporary alimony, called postseparation support, the judge has the authority to award attorney’s fees if the financially dependent spouse doesn’t have sufficient means to subsist during the pending case. That means the dependent spouse can’t meet living expenses until the judge enters an order for alimony. As is the case with children’s claims, the court must rule on whether the dependent spouse “has insufficient means to defray the expense of the suit.” These requirements also apply when the dependent spouse files a motion to modify the alimony. NC Gen. Stat. §50-16.4. At the trial, the attorney submits an affidavit about the fees, along with billing statements to show what has been paid. The judge generally confirms the fee is reasonable, considering the attorney’s skills and qualifications, and the type of work the attorney performed. Customarily, the client has to pay the attorney at the beginning of the case. If the fees are awarded, they are either reimbursed to the client or applied to any outstanding balance the client owes to the attorney. As is the case in so many family law cases in North Carolina, the judge has broad discretion when ruling on fees. A judge is free to order some, none or part of the fees requested.

Two’s Company and Three’s a Crowd: Third Parties in Family Law Cases

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Family law cases can be contentious enough with two people, but when there’s a third-party, it gets even more contentious and complicated. Third parties occur most frequently when marital property is at issue, and when there is a custody battle underway.

Third Party Rights

Once a third-party is named as a party in the lawsuit, he or she is entitled to the same rights as the other named parties in the lawsuit. But in an equitable distribution case, those rights extend only to the asset. Third parties have the right to call witnesses to testify, perform depositions, serve discovery, file motions, present evidence to the court, etc.

Equitable Distribution: Co-owners of Property

Most couples own property either in their joint names together or individually. But sometimes, a couple owns assets with a third-party who is a co-owner (CO). For instance, when a couple purchases a home, the in-laws might co-sign the mortgage note so the couple will qualify for the loan. Since they share legal responsibility for the mortgage debt, the in-laws might then want their names added to the deed. When a spouse files a lawsuit for equitable distribution, the division of marital property, the court makes a ruling on ownership of assets and debts. In that scenario, four people would be COs even though the younger couple would be the only residents living in the home. The law requires COs to be joined as parties to the case so they can protect their ownership interest. If the third-party COs are not included as parties to the lawsuit, the court does not have jurisdiction over that property. In the recent Carpenter v. Carpenter, the NC Court of Appeals vacated a court order because the lower court made a ruling on an investment account without naming the child as a third-party because the child was listed as an owner of the account. In another recent case, Nicks v. Nicks, the same result occurred when there were ownership interests in a business, but the business was not joined as a third-party to the lawsuit.

Child Custody Cases

Both parents have a constitutional right to the care and custody of their children. When it comes to non-parents, third parties have a heavy burden to bear if they ask the court to intervene as a party in a child custody case. The non-parent must show the parents’ constitutional rights should be limited because they are unfit. Or, the non-parent must prove the parents have acted in a manner that is contrary with their parental obligations. In other words, non-parents must show there is a very serious problem with the parents before the court could designate them as third parties because the parents have constitutional rights as parents. If they are granted the right to intervene in the case, they are then give the rights of any other party to the case.

Grandparents

Grandparents face the same hurdles as any other third-party when it comes to child custody cases. They have no special status in a child custody case. However, they do have one special rule. Because they are grandparents, they can in some circumstances be designated as third parties if a custody case is pending so they can ask the court for court-ordered visitation. This generally means the court will set aside time for visits, as opposed to giving them the ability to make parenting decisions or have any type of physical custody, which is really physical “possession” of the child.

The Trial: A Chaotic Experience

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No matter how prepared you and your attorney are, the days before a trial are frantic and stressful. A good case can be like a work of art. At first glance, it can look flawless but when you stand back and tilt your head, there are always a few more minor adjustments to be made before it is seemingly perfect. But trials are not perfect. Nor are they a color-by-number picture with a beginning and an end brightly mapped out. Instead, trials are organic.

How are Trials Organic?

Trials are organic because they take on lives of their own. After the first hour or two in the courtroom, a rhythm usually develops, which can offer a little more comfort. Trials are never what you (or your attorney) expect. Perhaps they will be better or worse, but they rarely stick to the script. Human nature means life is fluid . . . and messy. Because life doesn’t have a pause button, new events are constantly taking place right up to the day of the trial.

The Human Factor

No two trials are the same, nor are they made up by the same cast of characters or backdrop. Besides the fear of the unknown, the parties have the pressure of court staring them in the face. Stress and tempers can flare between the plaintiff and the defendant. Last-minute blow-ups between the parties and extended family members can impact the direction of the trial too. One or both of the attorneys might be completely unaware of some major problem that just unfolded on the day before court. The script is sometimes scrapped early in the trial because of the unexpected testimony of a witness or two. In that event, your attorney must improvise, playing it by ear.

The Attorney

Approaching trial dates can cause people to reconsider whether they want to attempt settlement. It is common for clients and their attorneys to be in touch with the opposing party all through the late evening on the eve of court. While the attorneys are tending to last minute details of trial preparation, if their clients want to negotiate and settle the case, they might draft the settlement documents at the same time with the hope that their time has been well-spent and that the parties will sign it the next morning. Time is a luxury most attorneys don’t have. We might have two or even three trials back to back, a problem over which we have little if any control. In the meantime, preparing witnesses to testify too early means they’re more likely to forget what they discussed with the attorney, so last-minute calls to witnesses are the norm.

Everyone Else

It is a good idea to have friends and/or family with you in court for moral support. They have the best intentions but sometimes they insert themselves between you and your attorney, interrupting your huddle and distracting us from communicating during a quick 5-minute break. A main pet peeve judges have is the reactions of those in the courtroom. The attorneys are facing the judge at the front of the room, so they can’t see what happens behind them. There is often drama in the courtroom in family law cases. Loved ones sometimes roll their eyes, huff, shake their heads or cause disruption. Judges may stop the trial to tell the audience that such reactions are unacceptable. Further, they may be advised that if there is any further disruption, someone will be held in contempt of court.

The Life Span of a Typical Case in Pitt County

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Although the term “typical case” is a misnomer, there are certain goals to be met as you wind your way through the local court process. I say goals because the judge has the discretion to adjust the times as may be necessary in each unique case. Life is messy and court is messier, sometimes not fitting into a specific timeline. We’re fortunate to have an official Family Court in Pitt County, staffed with three individuals. They keep the process moving along, by means of local court rules, the development of certain standardized forms to use in routine administrative matters and expedited communication with the judges concerning the most efficient way to handle issues that crop up as the case moves forward. The court expects the case to be resolved within a year if possible.

Phase One: File the Lawsuit

A family law case is filed at the courthouse by a Complaint, followed by an Answer and Counterclaims in response, and other filings. This process of putting the court and the other party on notice of what relief each party seeks can take up to 6 months after the case is filed. In the meantime, the court might hold hearings on temporary (until the case is finished) child custody, child support or alimony within 2 months after the case is filed. The parties might also choose to use discovery, which might require a deposition, paperwork to be exchanged, or written answers to specific questions by the other party. Discovery by one or both parties can easily take 2-3 months. The party who files for equitable distribution, the division of marital assets, first must complete a very detailed listing of assets and debts called an EDIA, and the other party then files his or her version. This process takes at least 4 months.

Phase Two: Negotiation and Mediation

Although clients usually know what property and debt there is, and the income of each party, the attorneys don’t really know until he or she reviews the actual evidence (the tax returns, pay statements, self-employment, etc.). Once the attorneys have a general idea of the scope of the marital estate and what the actual disputes are, they can each then decide the best strategy to use. Another fundamental task is to figure out whether the parties already agree on certain matters, such as listing the residence for sale and dividing the proceeds.

When a custody case is filed, parents are automatically required to participate in child custody mediation. If they are successful, parents can expect the court to finalize any custody agreement within 2 to 5 months after the case is filed. Our local court rules also require the parties to use financial mediation for all other matters, such as alimony and equitable distribution, before they are given a trial date. The goal is to complete mediation within 7 months.

Phase Three: Launch Sequence Activated

If there is no agreement after mediation, the cost begins to skyrocket because court is the only option unless the parties choose to use arbitration. Then, there is a significant and expensive amount “busywork” before and trial preparation that must take place.

For example, in equitable distribution cases, within 7 months after the case is filed, the attorneys for the parties prepare a “cheat sheet” for the judge called a pre-trial order. Clients sign it. For lack of a better description, it means they agree to disagree. In other words, they are telling the judge in writing which things they want the judge to decide. It also includes stipulations, which are written agreements. They might agree that an asset is marital asset but not agree who keeps it. Other disputes can involve whether the asset or debt exists, whether it is marital or separate, what the value should be, and who keeps it or if it is a debt, who is responsible for payment of it. For both alimony and equitable distribution cases, trials should take place 9 months after the lawsuit is filed, and the order should be signed by the judge and entered within 12 months. The court expects child custody cases to be finalized by a judge’s ruling within 6 months.

Anatomy of a Subpoena

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What is a Subpoena?

Subpoenas are documents that require a witness to appear in court or at a deposition to testify.  A subpoena or subpoena duces tecum (rarely called by that name) may require a witness to provide documents or other evidence, in addition to requiring a witness to appear in court to testify.

What if You Don’t Respond?

A witness must be prepared to testify and/or produce the documents unless and until the judge rules otherwise. A court may hold the witness in contempt of court for failure to comply with a subpoena. A judge has the authority to incarcerate a person who refuses to testify or produce records as required by a subpoena.

The Rules

An attorney (or any interested party) may file a motion to quash (or cancel) a subpoena.  The decision about whether materials must be provided, or if a witness must testify, rests with the judge.  Sometimes judges will rule there are valid reasons to override the objections to a subpoena. This may be because the information subpoenaed is subject to a privilege, such as attorney-client privilege. Other types of special rules might apply to information requested, such as medical records.

Or, a judge can limit what must be released pursuant to the subpoena.  Sometimes judges will ask the person who has the information to “redact” it.  Redacting is taking a marker and blotting out certain information, such as the name of the person who reported suspected abuse of a child to Child Protective Services or social security numbers and dates of birth.  Judges may review the information “in camera” before making a ruling, which means he or she reviews the documentation in his or her office before allowing any of it to be released to the attorneys.

If You Are Served

A subpoena is usually served on someone by sheriff.  Not only can a sheriff hand the paperwork to you, he or she also has the legal authority to serve someone by telephone call. A North Carolina subpoena includes information for witnesses, explaining the duties and rights of a witness.  Call an attorney immediately if you are served, and time is of the essence. A court order is the only way to avoid obligations to testify or produce records.

Examples of reasons a court might enter an order if someone makes a proper motion:

The subpoena fails to allow reasonable time for compliance.

The subpoena requires disclosure of privileged or other protected matter and no exception or waiver applies to the privilege or protection.

The subpoena subjects a person to an undue burden or expense.

The subpoena is otherwise unreasonable or oppressive.

The subpoena is procedurally defective.

If you are served with a subpoena and want to know your rights or you need to file a motion to quash a subpoena, contact an attorney.  Time is of the essence, especially if you were served shortly before the trial date is scheduled.

Are Credit Card Debts Marital?

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In short, credit card debts can be marital, just as any other type of debt. In contrast with marital property, the law doesn’t assume a debt is marital just because it was incurred during the marriage. If a debt is marital, each party is equally responsible for it, although the court usually assigns it to one party to equalize the net part of property each party gets. If a debt is separate, it isn’t calculated into the marital estate. To understand credit card debt, we must first look at what a marital debt is.

The Timing of Marital Debt

A marital debt must generally be incurred by one or both spouses while they are married and before the date of separation (we’ll call it DOS) unless the proceeds were used to pay off the “old” marital debt that existed when the parties separated. [1] Like marital property, marital debt must exist at DOS. If you just paid off your credit card with your bonus from work, and then you separate, the debt doesn’t exist and it is not a marital debt for which you would get credit.

What’s in a Name?

Marital debt can be in the names of one spouse or both. However, there is one important distinction between debt and marital debt. The court can say who is responsible only as between two spouses. But the court can’t tell a third party, such as Mastercard or Visa, that they can only enforce the debt against one person when two people signed the agreement to repay them. The court may indemnify a spouse, meaning that if the husband is assigned to pay the credit card debt and he fails to do so, he has to repay the wife if the credit card company sues her for payment. But if the other spouse had the money to repay you, he or she would’ve probably paid the debt in the first place.

Joint Benefit: The Key Issue

Unlike marital property, to call a debt marital, it must be incurred for the joint benefit of the parties. [2] There is no presumption that the debt is for the benefit of both parties. If you want to prove the credit card debt is marital, you have the burden of proof to show that the charges were for the joint benefit of the parties, up to the DOS. Courts have vast discretion in ruling on whether charges benefited both parties. Charges for groceries and gas probably are, but charges for one spouse’s dental treatment probably aren’t.  Most people make on-going charges, including charges made after DOS. Another difficulty can be non-descriptive statements. How do you show what you purchased from Wal-Mart for $175.43 from six months ago? A critical difficulty is proving what the outstanding credit card balance only on DOS was used to purchase. If the balance at DOS resulted from purchases made over three years, you still have to prove which ones were marital.

Financial Fault in North Carolina Property Division

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Traditional marital fault, such as abandonment or adultery, does not matter when the judge divides marital assets in North Carolina. Generally speaking, equitable distribution of marital property is strictly a math calculation, similar to a business transaction. There is a very strong policy for the courts to divide the marital estate equally unless there is some special reason why the marital assets are not equally divided. Although marital fault does not apply in property cases, the court may consider financial fault. When one spouse wants more than 50% of the marital property, he or she has the burden of proving a special reason or factor applies.

What Counts?

Sometimes, the same behavior that is considered marital fault is also coincidentally the same behavior that constitutes financial fault. Some of the special reasons (called factors) the judge can consider when deciding whether to divide marital property unequally based on financial fault include:

(1.)  Acts to maintain, preserve, develop, or expand marital property.

(2.)  Acts to waste, neglect, devalue or convert the marital property.

(3.)  Any other factor the court decides is just and proper.

Examples

A spouse can argue the first two reasons listed above would apply when the other fails to maintain and repair a residence or other property, changing title of property to someone else trying to conceal it, or mismanagement of assets. Another situation falling into the category is a spouse hiding debts and the unintended consequences that impact the other spouse. Spouses may find out too late that the other must file bankruptcy on joint debts, leaving him or her holding the bag for those debts, or that there are lawsuits that could result in judgments that may be liens on the family home in some cases. Another situation allowing a judge to consider giving one spouse more than 50% of the marital estate is when one can’t pay a marital debt and the other intentionally refuses to pay the marital debt, such as a mortgage, and perhaps choosing to let a home go into foreclosure rather than have it awarded to the other spouse.

The Catchall

The last reason above, labeled “any other factor,” can be anything the judge determines is important after hearing evidence from both sides. This is a catchall for a party to ask the court to divide the marital assets unequally. Although it is not specifically listed by the statute, gambling away substantial marital savings could be an example of financial fault. One North Carolina Court of Appeals case found financial fault when the wife removed truckloads of marital property from the marital home immediately before they split. Another case found it when the husband was in a bigamous marriage and had a secret family. When someone spends substantial money buying a significant gift for the person with whom he or she is having affair can be financial fault, as well as marital fault.

Going Through Your Case with a Fine Tooth Comb: Appeals in North Carolina

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Judges sometimes make a ruling the day of court, perhaps after a child custody case. Other times, they take the case “under advisement” which means the judge is not prepared to make a ruling in court. Instead, the judge will consider testimony given by the witnesses, and sift through stacks of evidence and notes. Then, the judge usually makes a ruling by sending an e-mail to the attorneys or by putting a letter in their courthouse boxes.

You Don’t Like What Happened – Now What?

To appeal the ruling in your case, there must generally be some error in the way the judge applied the law in the case. If the judge ruled on the disputed facts in a case, the ruling is about the facts of the case, not the law. The judge decides the facts when there is a ruling that a person did something, or did not do something when there is a “he said, she said” situation. There are strict time limits for you to appeal, limits that begin on the day the order is officially filed. Temporary rulings are not typically eligible for appeal because they are later replaced by permanent orders entered when the entire case is done. At that time, the judge may choose to adjust the ruling to account for anything he or she feels should be addressed since the time the case was first filed.

Where Does Your Case Go and Who Handles It?

At the trial level, North Carolina family law cases are tried in District Court, the same court that handles traffic matters or misdemeanor criminal matters. Appeals from the trial court are heard by the North Carolina Court of Appeals in Raleigh. In rare cases, family law cases are then appealed to the North Carolina Supreme Court. Some family law attorneys handle appeals but many do not. There is a completely different set of rules and procedures for appellate cases. Such a case can easily take a year or two for the appeal to be completed. The appellate court will affirm (uphold), reverse (overturn) or remand (send back to be tried all over again) the trial court’s original ruling.

What Does All This Mean?

Any appeal takes a long time to wind through the system, just as a trial case does. And just like the lower court trial, an appeal is expensive and the stakes are high. In Eastern North Carolina, the cost of appeals makes them out of reach for many people. The trial level ruling is extremely important. Appeals are not the only option. If both parties agree, they can participate in alternative dispute resolution such as arbitration. If they participate in arbitration, they essentially hire a qualified decision-maker to make the decision for them.