Category: The Court Process

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.

Contempt of Court in North Carolina

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When someone violates a court order, the other person can file a motion asking the court to hold him or her in contempt. In family law, judges enter orders for child custody and support, alimony and marital property division, among others. Our statutes define the way a judge can require people to obey court orders, up to and including incarceration. There are two kinds of contempt, civil or criminal.

Civil Contempt

After the judge determines the order is valid and still in effect, a judge must be certain the “purpose of the order may still be served by compliance with the order.” NC Gen. Stat. §5-21(a). To enforce an order by civil contempt, someone must willfully fail to comply with the order. He or she must have the ability to comply or take reasonable measures that would enable the person to comply. For instance, if you are required to pay child support by court order but you are in a bad vehicle accident and unable to work some period of time because you were in the hospital for a month, you might be able to prove you were unable to comply with the order. That doesn’t mean the judge will cancel or reduce the child support obligation. It just means that the order is not being enforced by holding you in contempt and incarcerating you. There are other ways people can enforce orders.

Incarceration For Civil Contempt

The purpose of civil contempt is not to punish someone as is the case with criminal contempt. Instead, the purpose of incarceration is to force the person to comply with the order. If a parent owes back child support, he or she is taken into the custody of the sheriff until the payments are made. The judge must order certain release conditions called “purge conditions” because doing those things will allow the person to purge or rid himself or herself of contempt. It is said that in civil contempt, the person incarcerated holds the keys to the jail because all he or she has to do is comply with the order. The person refusing to comply with an order of the court may be initially incarcerated up to 90 days. If there is no compliance, the judge will have another hearing at the end of the 90 days. The maximum time of incarceration for civil contempt is one year. NC Gen. Stat. §5A-21(b2). Because the violator faces incarceration, the court will usually offer to appoint an attorney if the person can’t afford one.

Criminal Contempt

Instead of holding the keys to the jail, the purpose of criminal contempt is punishment. This is what people usually think of when contempt comes to mind. NC statutes list plenty examples of bad behavior, all of which must be willful and usually in the courtroom. These include interrupting court proceedings, disrespecting the judge, disobedience or interference with a court’s order or directive, refusing to answer a question on the witness stand or refusing to be sworn in (of affirmed) to testify.

Ex Parte Orders: When Will I Have My Day in Court?

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The Courts and due process rights in the United States Constitution are built upon the right of each person to a fair trial. Fundamentally, a person who is served with a lawsuit has the right to respond in writing, by testimony and by evidence offered during the trial. Both parties may exercise the right to file motions asking the court to do something, seek documents in the possession of the other party (called discovery), and have an attorney issue a subpoena compelling a witness to testify or provide evidence to the court. The law gives each person his or her day in court.

Exceptions to the General Rule

While this holds true with family law cases, there are times when there is an extreme emergency serious enough to warrant the court entering a temporary order based only on one side of the story. If you’ve been in court maybe you’ve heard the term ex parte but no one ever explained it. It is a Latin term that means something takes place based on only one side of the story. In this context, it means the court makes a ruling without the other party being present. Ex parte order (EPOs) are generally disfavored in court. The judge must weigh the seriousness of the allegations and decide whether they justify delaying the due process rights of the other party.

Judges take the facts of each individual situation into account on a case by case basis. There is no “one size fits all” approach to deciding whether an EPO is justified. For example, when a spouse or other family member attempts to cause bodily injury to the other, or intentionally causes bodily injury to him or her, the court might enter an EPO in the form of a domestic violence order. When the judge grants the EPO, it is served on the other party who must obey the order even though he or she didn’t have an opportunity to tell his or her version of what happened. But, he or she will be entitled to his or her day in court shortly.

How Does the Ex Parte Order Play Out?

If someone is served with an ex parte order, time is of the essence. An EPO is usually served with several documents, and includes notice of the date and time for the trial. People are often upset because there is a hearing date of only about ten days from the date they were served. Ironically, a short time before having a trial is meant to help the person who gets served with an EPO. The policy of the law is to give that person the opportunity to be heard in court as soon as possible. At the hearing, both sides are given the chance to tell the judge what happened and offer any evidence. For example, in a domestic violence case, the person against whom an EPO was entered might offer testimony about what happened and a photo or e-mail explaining that version of what happened. In family law cases, EPOs might be entered in child custody cases or even in certain equitable distribution cases when one party begins liquidating marital assets.

Order in the Court: The Nuts and Bolts of Court Orders

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In the world of family law, orders define rights as between spouses and former spouses, as well as between parents of children. Each state has a unique definition of a court order. This article applies only to family law cases in North Carolina.

How Do We Get Court Orders?

The first step in obtaining a court order is filing a lawsuit, which gives the court jurisdiction and the authority to sign a court order. Temporary orders are based on a short trial of only a few hours, on a date shortly after the case is filed. These hearings can be rushed and chaotic but they’re only meant to give parties some structure until the full trial takes place. Full trials give them the opportunity for the judge to hear testimony of the parties and their witnesses, and offer more thorough exhibits.

What Are the Mechanics?

After a trial, judges sometimes write their own orders. This is more likely to happen with temporary orders, such as temporary child custody. Other times, judges assign the task of writing an order to one of the attorneys. After a judge signs a written order and the clerk of court files it, it is an official order. Filing means the signed order goes to the clerk of court’s office where the clerk stamps it. The special stamp shows the date and time that the order was placed in the court file, which includes all the paperwork filed in the case.

What’s Included in a NC Court Order?

The first part of the order is called Findings of Fact, where the judge makes a legal ruling on the disputed or contested facts, such as whether a spouse committed adultery. Next, orders typically have conclusions of Law. This is the “legaleze” part of the order, where the judge says (i.e., concludes) what the law requires based on those particular facts. The actual Order is the part most people think of when they think of an order. For example, it awards custody and includes visitation schedule, sets an amount of child support or alimony, or says who keeps marital property.

Consent Orders

When a lawsuit has been filed and the parties decide to settle their case without a trial, the judge will sign what is called a Consent Order. That means the parties give the judge their consent to sign and enter the order. The reality of court can cause people to reconsider settling their cases just before a trial starts. Referred to as settling at the courthouse steps, it isn’t unusual for the consent order to be hand written with pen and paper right then and there. The handwritten order is called a Memorandum of Order. It can be typed and improved upon after the hand-written order is entered, but the handwritten order is immediately valid and enforceable once it is sign by the parties and the judge. If the parties aren’t settling at the courthouse steps, the judge might schedule a date for the parties to appear in court for 5 or 10 minutes to officially give him or her permission to sign the order without a trial. These orders are typed and finalized when signed.

Either way, the judges might ask the parties if they’ve read the order, if they understand what it requires each party to do, if they have discussed it with their attorneys, and if they are entering this order of their own free will. Another question judges ask is whether each party understands that the order is enforceable by the contempt powers of the court (as all orders are) which can include incarceration. After a few brief questions, the judge reviews and signs the order, and each party walks away with a copy of the official order.

 

Your Case & the Cutting Room Floor: Too Much of a Good Thing?

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There are all kinds of family law cases, and each one is unique. Some are straightforward and others are complex. Attorneys highlight the favorable aspects of their clients, and de-emphasize the unfavorable. Trials take on lives of their own regardless of what clients, attorneys or even judges expect. There are a lot of moving parts, especially when cases are lengthy and complex. Especially with the best cases, editing is the hardest part. Too much of a good thing can backfire when the judge is knee-deep in “good” information. Clients and attorneys don’t always agree on where to draw the line.

In the Court Room

In Pitt County family court, each side has a specific number of hours assigned to try their case. A two day trial might be distilled to 5 or 6 hours for each side, after taking into account lunch breaks and short breaks throughout the day. That might sound like a lot but it really isn’t because that includes any opening remarks, questions to witnesses, cross examination and closing argument. The court has to keep cases moving through the system, which is already tremendously over-burdened. Time is of the essence.

Trial Exhibits

Exhibits are usually documents each side admits as evidence for the judge review before deciding the outcome of the case. Depending on the type of dispute there is, exhibits might include photos of the children, copies of grade reports and medical records, text messages and e-mails between the parties, records of each party’s wages and insurance, bank and credit card statements, or tax returns. A complex case might have 30 or 40 exhibits, each being multiple pages. The judge has to review two stacks of “basic” exhibits, one for each party. Frankly, they can be rather dry and boring.

Less is More?

Like anyone else, some judges have longer attention spans than others. If it is a custody case, they don’t mind five or ten photos of the child at issue. They do mind thirty photos unless there is some specific reason. For a trial, a good attorney creates a cake, so to speak. The cake itself forms the foundation, the basics. The “goodies” are the decorations or icing on the cake. One example of goodies might be love letters written to a third party by a cheating spouse. It is usually more powerful to select four or five of the best “goodies” instead of diluting the value by heaping them on indiscriminately. These exhibits must be distinct to stand out from the rest. You might have fifty or sixty pages of e-mails where you should have ten. Your attorney has been in trials with a certain judge and knows his or her preferences. Take your attorney’s advice and get the best bang for your buck, and keep the judge focused on the priorities that matter to you.

Forgive and Forget: Condonation in North Carolina

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Judges have a good deal of leeway in deciding what to do about marital fault and defenses when they are proven in court. Traditional sex roles are rapidly changing in some ways but not in others, and judges react differently to the behavior that constitutes marital fault. Some think fault is very important, but others do not. Marital fault relates to alimony, not equitable distribution, which is the division of marital property.

What Are the Marital Fault Grounds?

A spouse commits marital fault if he or she abandons the family, commits adultery, “maliciously turns the other out of doors” or “by cruel or barbarous treatment endangers the life of the other.” If a spouse “becomes an excessive user of alcohol or drugs so as to render the condition of the other spouse intolerable and the life of that spouse burdensome” that is also marital fault. The last ground of marital fault, known as indignities, is a catchall for bad behavior generally. It occurs when a spouse “offers such indignities to the person of the other as to render his or her condition intolerable and life burdensome.” NC Gen. Stat. §50-7.

Consequences of Marital Fault

Marital fault is not a requirement for alimony. But if someone commits marital fault, the judge can financially penalize the person receiving or paying support. In cases of adultery, the financially-dependent spouse who cheated cannot receive alimony, and the supporting spouse who is the bread-winner must pay alimony if he or she cheats. The policy is based on the historical tradition of an innocent dependent spouse who was left financially stranded by the other, who left for greener pastures with another romantic interest, for example.

What is a Defense to Marital Fault?

A defense means that you can be shielded from the consequences the marital fault that you committed. A defense excuses the bad behavior (i.e., the marital fault) and gives the spouse at fault a “clean slate” legally. From our example above, if you are an adulterous supporting spouse without the legal defense of condonation, you are automatically required to pay alimony. The only remaining questions at the point is the amount of alimony to be paid, and for how long.

The Defense of Condonation

Condonation, condoning bad behavior, is as a defense to a spouse’s marital fault. Black’s Law Dictionary defines condonation as “conditional remission or forgiveness, by one of the married parties. . . the condition being that the offense shall not be repeated.” If you forgive your spouse for having an affair, for example, you do so on the condition that he or she never cheat again. Critics of condonation argue that it discourages reconciliation because the victim of the fault can be penalized for trying to save the relationship. On the other hand, the policy makes sense when you consider a 25-year-marriage, and the prospect of arguing about an affair that happened 21 years ago. Although the law delves into the reason for the separation, it does not delve into the marriage.

How Do You Prove Condonation?

To have the benefit of the forgiveness, the condonation defense, the spouse at fault must first prove that the innocent spouse knew that the misconduct occurred. It isn’t enough that he or she suspected the misconduct happened. The second requirement of condonation is to show that the innocent spouse voluntarily chooses to continue or resume the marital relationship. This is shown in one of two ways. A spouse can directly communicate forgiveness, such as writing a letter or sending an e-mail. Or, forgiveness can be shown when the innocent spouse voluntary engages in sexual intercourse after knowing about the marital fault. But isolated acts of sexual intercourse are not enough to give a spouse the defense of condonation.

Recent Condonation Case

On December 18, 2018, the NC Court of Appeals made a ruling about marital fault and defenses to it in Gilmartin v. Gilmartin. The husband had an addiction to pornography and communicated with women online. Multiple times, he denied doing these things. When his wife discovered that he was in fact doing these things again, he admitted doing them and promised her that he would go to counseling. He continued the behavior and stopped going to counseling. When he argued that she had condoned his behavior, the Court of Appeals agreed with the trial court, that she did not condone his “continuing ‘use of pornography and online sexual solicitations’ because Husband ‘deceiv[ed]’ her into believing he had ceased the behavior.” Without knowing about the behavior, she couldn’t forgive him for it.

Can We Close the Courtroom When I Testify?

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Nobody enjoys court, especially when it involves testifying about personal things such as infidelity in an alimony case or allegations of substance abuse in a child custody trial. Do you have the right to ask the judge to clear the courtroom, closing the trial to everyone except the parties to the lawsuit or their witnesses? Probably not. It is quite rare for a judge in NC to have a proceeding in “closed court.”

The General Rule

In North Carolina family law cases, the general rule is that trials are conducted in “open court.” This means all members of the public have the right to be present in the courtroom during trials, subject to safety concerns such as exceeding the fire marshal’s maximum occupancy in the courtroom. Article 1, Sec. 18 of the Constitution of North Carolina clearly states “All courts shall be open. . .” While people might think of the press being allowed to be present in the courtroom during trials, the right also applies to family law trials. In NC courts, you generally don’t have a right to privacy.

Exceptions to the Rule?

In France v. France, 209 NC App. 406 (2011), the NC Court of Appeals rejected the argument that there was a constitutional right to privacy in custody cases because children are involved. The Court ruled that the constitutional rights of the public to open court proceedings outweighed any privacy rights of the parties. The Court made some exceptions to the general rule, mainly for children in  adoption proceedings or “where a child is testifying about alleged abuse that child has suffered. . .” which would certainly involve testimony of rape, molestation or incest. France at page 417. When you file a family law case such as child custody or alimony, the lawsuit is generated by a document called a complaint, which is filed at the court-house. The on-going documents that are filed in the case, such as counterclaims or motions, are also public record.