Category: Court

How Long Will My Case Take?

Posted on

The time it takes depends on several factors, including which attorney your ex hires, how ready you are (or the other person is) to get the case resolved, and of course, how many things are disputed. People’s emotions can come into play as well, especially if one person wanted to separate, but not the other person.

Negotiation process

If you choose to negotiate through your attorneys, the attorneys will need paperwork from clients to determine the incomes and, sometimes, living expenses if you are negotiating child support or spousal support. Your attorney will also need documents from you to identify and value the assets and review the outstanding debts. The negotiation process can take as little or as much time as it takes to reach a mutual agreement. It does take some time for all parties and attorneys to get all of the appropriate documentation and correspond with each other or meet to attempt settlement.  No lawsuit is required to participate in child custody mediation, financial mediation, arbitration or collaborative family law.

Trial process

While each case is different, the usual case that becomes a lawsuit involving property, custody and child support, and perhaps alimony, takes about a year if it is tried in court. At least, that is the goal of family court.  There are several phases of litigation.

A document called a complaint generates the lawsuit.  Once it is filed and served on the other party, he or she will generally have 60 days to file an answer and any counterclaims if he or she files a request for additional time.  The party who filed the complaint will then generally have up to 60 days to file a reply to the counterclaims, assuming an extension of time was filed.

Court hearings for temporary matters, such as temporary child support, are usually scheduled for a date that falls 2 or 3 months after the date the complaint is filed. Next is mediation, which the court requires before any hearings on permanent relief are scheduled to be tried by a judge in the courtroom.  If the case is not resolved by mediation, there are many strategic things that can take time, such as depositions, appraisals and discovery. The trial itself will often take several days, and after that, the entry of the order may take a month or two.

What Are Divorce Papers?

Posted on

People frequently contact an attorney when they receive documents from an attorney or their ex. When someone uses the term divorce papers it can mean a variety of things. Although there are other possibilities, the overwhelming majority of people who receive what they call divorce papers have received one of two things: a proposed contract or a lawsuit. These two things are completely different, and anyone who receives divorce papers from an attorney (or the ex) should immediately consult with an attorney. The attorney will explain what the documents actually are, and advise you of your rights and responsibilities.

Separation Agreements

When spouses can agree about dividing debts and property, alimony if applicable, or child support and custody, they may sign a Separation Agreement and Property Settlement. Attorneys sometimes send a proposed Separation Agreement to the other party to see if there is room to negotiate an out of court settlement. A Separation Agreement is a contract, not a court order. Because it is a contract, a person who violates it can be liable for breach of contract. Contrary to what most people think, there is really not a “standard separation agreement” although there are several paragraphs that are almost always included in most separation agreements.

Like all contracts, the parties must agree to be bound by the terms of the contract, and properly sign or “execute” it and any related companion documents such as deeds or car titles. There is no way to force the agreement if the other person is unwilling to negotiate. No contract can create an actual divorce, which must always be granted by a judge after a lawsuit is filed, even if the divorce is uncontested.

Lawsuits

When people say they are going to get divorce papers that definition might mean they are filing a lawsuit and asking the court for any number of things. A lawsuit might be one for divorce after a separation of at least one year, an emergency domestic violence order, an order for alimony or child custody and support, or equitable distribution, which is the division of property and debts.

When there is no agreement on financial matters or issues concerning children, the only way to force a resolution is to file a lawsuit. In our state, divorce papers for a lawsuit consist of a complaint, which is the document that activates a lawsuit, and a summons. The summons gives the court jurisdiction or the right to order you to do something or stop doing something, like pay child support or divide property by signing a deed or paying a debt.

In family law cases, unlike criminal court, it does not matter if you are the plaintiff or the defendant. You will be asking the court to do the same things regardless of whether you file the lawsuit first. Lawsuits may or may not be related to the divorce itself, although a divorce operates as a deadline for certain claims. Unlike contracts, lawsuit documents must be “served” on the other person. Service is the act of a sheriff handing documents to you, or a few other alternatives. If you are served with a lawsuit, you have a specific deadline to respond. If you fail to act on the documents served upon you, or if you wait too long to act, you risk forever losing the right to file your claims or certain defenses.

Child Custody Evaluations in North Carolina: A Double-Edged Sword

Posted on

The vast majority of child custody cases are settled out of court.  Parents or custodians sometimes negotiate on their own with attorneys to reach an agreement. Another way an agreement in custody case can be resolved is by mandatory custody mediation where a neutral mediator and both parents meet in an effort to create an agreed-upon custody order.  The cases that fall outside of the vast majority and are litigated in court are the ones that are most complex. For example, it is difficult to “split the baby” when parents live in different parts of the country and both want to have primary custody.  That usually means that one parent will have most of the school year with the child or children, and the other will have most of the summer vacation. These are the types of cases in which parents often consider having a child custody evaluation performed.

What is a Child Custody Evaluation?

Performed by a psychologist, a CCE results in a written report that is provided to the court. The psychologist evaluator will then testify as an expert witness at the child custody trial. The exact details vary depending on what the expert is appointed by the court to do.  But the evaluator usually administers psychological testing, such a personality test called the MMPI-2, for each parent or guardian. The test results identify the strengths and weaknesses of each parent.  The evaluator typically reviews the medical and mental health records of the family members, meets with the family members separately and together to interview and observe them, and contacts third parties such as teachers or third parties who reside in the home. The evaluator might even do a home visit to each parent’s residence. Based on all of this, the CCE report will make recommendations about what is in the best interest of the child or children.

What Does the CCE include?

The CCE report will usually give the judge insight on what the child actually needs, as well as explain each parent’s parenting styles.  To over-simplify it in an example, if a child suffers from anxiety, he or she might need a very structured routine and one parent might be more decisive than the other.  There is usually a list of these sorts of conclusions, followed by recommendations, which almost always include a course of mental health treatment. That treatment must be referred to a third party professional because the evaluator psychologist is used only for court and is prohibited from treating any of the family members. Another recommendation might be for the court to assign a parenting coordinator, who is authorized to make minor decisions when the parents dispute what the custody order requires them to do. Recommendations are otherwise based on each family’s disputes and needs. These might include the frequency of phone calls with each parent, or who is better suited to make medical decisions if the child has serious medical problems.

What are the Advantages and Disadvantages?

If the report recommends a schedule or a parenting plan that benefits you, congratulations.  You now have a built-in expert witness testifying on your behalf. However, if the report favors the other parent, you are at a definite disadvantage. Overall, judges are inclined to accept the recommendations.  This is less about rubber stamping the report than it is about having an expert with a string of letters behind his or her name tell the judge why he or she should do what is in the report. Unlike a psychologist evaluator, the judge isn’t going to go to your house, give you a personality test, talk to your child (most likely) or observe each of you with your child. Instead, the judge is usually only getting to see you and the other parent for a few hours while you testify in your dress clothes. CCEs can be extremely expensive, and insurance usually does not cover them. One or both parties might choose to have an attorney depose the expert in a deposition, which adds significantly to the cost.  Judges often expect the parties to share the cost when they appoint the expert to perform the CCE.  After the trial, the judge has the authority to assign the costs for CCE, including reimbursement of one party by the other for the full cost, including the deposition and the expert testimony.

Hired Guns: Experts in Family Law Cases

Posted on

In cases of marital property, child support, alimony and even child custody cases, an attorney may advise a client to hire an expert.  In these types of cases, there are two types of experts, those who act as a consultant for the attorney and client, and those who testify in depositions or court as expert witnesses. Typical experts in family law cases include CPAs, business valuators, medical doctors or psychologists, appraisers or any number of professionals to shed light on the situation at hand.

Consulting Experts

When one or both parties are self-employed, a CPA might review the case and advise the attorney what the true income is. Income for support is usually quite different from incomes claimed on tax returns, even when the tax returns are perfectly legitimate. The IRS looks at the tax code at things like deductions and depreciation. However, the judge in a support case is looking at the true income available to a party, which might include non-cash compensation such as a company car or other expenses paid by the company. Appraisers are not just used to value homes, but for anything from jewelry and collections of guns, to paintings or baseball cards. Occasionally, both parties may reach an agreement on a value when the expert gives his or her opinion. Other times, there is no agreement on what the expert says, so a trial is necessary.

Expert Witnesses

Non-expert witnesses testify about facts based on what he or she has seen or heard, and cannot give their opinion on those facts. By contrast, an expert gives his or her opinion about something. Although there are many types of experts, all must have “scientific, technical or other specialized knowledge” to help the judge understand the evidence.  The expert generally has special skill, experience, training, or education. See Rule 702 of the NC Evidence Code.

For example, a psychologist may qualify as an expert to testify about what he or she believes is in a child’s best interest in a child custody case. The psychologist meets with each of the family members several times and performs psychological testing on them before he or she prepares a report for the judge known as a child custody evaluation. It is then given to both parents so their attorneys can ask the expert questions or cross examine the expert in court. Parents can request a child custody evaluation for any reason but they often request one when the child or parent has medical problems, anxiety, depression, substance abuse, or other mental health concerns. Expert witnesses may be chosen by agreement of the parties or one party may file a motion requesting the judge to appoint an expert by court order.

What Is Family Court?

Posted on

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 perjury?

Posted on

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?

Posted on

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.

Are Bad Parents Rewarded in Custody Cases?

Posted on

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

Posted on

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.