What is a “Motion in the Cause?”

In North Carolina family law practice, litigation is started with a summons and complaint being filed, followed by an answer and counterclaims and finally, a reply to the counterclaims.   This series of filings is collectively referred to as the pleadings in the case.

Claims in North Carolina family law cases can also be made in the form of a motion in the cause.   For example, even if the issue of child custody is not raised in the pleadings, a party may file a motion and ask the court to award child custody.  This is a motion in the cause.

Another example is that of equitable distribution.  In North Carolina equitable distribution law, there isa rule that a claim must be made for equitable distribution prior to divorce or the right of a party to ask for an equitable distribution is lost forever.    Even if the pleadings are closed, a party may file a motion in the cause for equitable distribution any time up until the entry of the divorce judgment in a case.

Several types of claims may be made by motion in the cause.   Alimony, postseparation support, equitable distribution, child custody, child support and attorneys fees all may be made by motion.  Like equitable distribution, claims for alimony and postseparation support must, heover, be made prior to the entry of the absolute divorce.

 

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Scott Allen is a divorce attorney in Raleigh, NC with over twenty years of experience in all areas of family law litigation and settlement. He can be reached at 919.863.4183 and his email is sallen@allenspence.com

How Much Alimony Should I Expect to Pay or Receive?

One of the many questions about alimony that I field is the “how much” one.   “How much will I have to pay?”  or “How much will I get it?”   Easy questions, not always easy to answer.

The reason the “how much” questions are not easy to answer is because there is no statutory guidance.   There is no rule, for example, that says if Husband makes $X and Wife makes $Y then alimony shall be $Z.   In short, there are no North Carolina alimony guidelines that judges must follow and lawyers can point to when advising their clients.

The only rule about the amount of alimony under North Carolina family law statutes is that the duration is in the discretion of the judge.  That means that two judges applying the same North Carolina alimony law to very similar cases may, in their separate application of their “discretion” come up with two very different decisions about the amount of alimony that should be paid.

Assume for a moment, the following facts as an illustration:

Husband makes $100,000 per year.
Wife makes $20,000 per year and has no real prospects of increasing her income..
No children.
Twenty year marriage and both are in their early 40’s.
No marital fault.
Wife says she needs $2000 per month to maintain a reasonable and accustomed standard of living.
Husband can pay $2000 but claims that Wife’s need are less than what she says because her car is paid for, their house is paid for that she is getting, and that her claimed expenses are over-stated by about $1250 per month.

Let’s leave out tax consequences for now but assume that this same case is for trail in Wake County and in Orange County.

A judge in Wake County family court might look at this and think ten years at $2000 per months is reasonable.  A judge in orange County might look at this and think that $500 for there years is reasonable.   Both judges are equally “right” because there is no objective right amount.

So what should you do?  How can you figure out a reasonable amount to pay or expect?  The answer is in consulting with an attorney who has practiced in the county your case is in, in front of the judge who is possibly going to hear your case.

 

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Scott Allen is a divorce attorney in Raleigh, NC with over nineteen years of experience in all areas of family law litigation and settlement.  He can be reached at 919.863.4183.

How long is alimony in North Carolina?

money issuesAt one point over the last twenty years of doing this kind of work, I heard someone refer to alimony as “ali-money.”   I can understand why.  The truest statement about alimony is that most everyone wants it and absolutely no one wants to pay it.

One of the many questions about alimony that I field is the “how long” one.   “how long will I have to pay?”  or “How long will I get it?”   Easy questions, not always easy to answer.

The reason the “how long” questions are not easy to answer is because there is no statutory guidance.   There is no rule, for example, that says for every year of marriage there is six months of alimony.

The only rule about the duration of alimony under North Carolina family law statutes is that the duration is in the discretion of the judge.  That means that two judges applying the same North Carolina alimony law to very similar cases may, in their separate application of their “discretion” come up with two very different decisions about how long alimony should be paid.

Assume for a moment, the following facts as an illustration:

Husband makes $100,000 per year.
Wife makes $20,000 per year and has no real prospects of increasing her income..
No children.
Twenty year marriage and both are in their early 40’s.
No marital fault.
Wife needs $2000 per month to maintain a reasonable and accustomed standard of living.
Husband can pay $2000.

Let’s leave out tax consequences for now but assume that this same case is for trail in Wake County and in Orange County.

A judge in Wake County family court might look at this and think ten years at $2000 per months is reasonable.  A judge in orange County might look at this and think that $2000 for there years is reasonable.   Both judges are equally “right” because there is no objective right duration.

So what should you do?  How can you figure out a reasonable duration to pay or expect?  The answer is in consulting with an attorney who has practiced in the county your case is in, in front of the judge who is possibly going to hear your case.

 

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Scott Allen is a divorce attorney in Raleigh, NC with over twenty years of experience in all areas of family law litigation and settlement.  He can be reached at 919.863.4183.

Alimony, Court Orders and Separation Agreements

alimonyI often get calls asking about modification of alimony.  Sometimes the calls are from the spouse who is paying alimony and there has been a job loss or other life event that prevents him from paying.  Sometimes the calls are from the spouse receiving alimony saying they need more alimony or a longer duration of payments for various reasons.   When these calls come in the first question that must be answered is whether alimony may be modified at all.   That’s right: alimony is only modifiable under certain circumstances.

When is alimony modifiable?

Example 1:   The parties sign a separation agreement that includes alimony that is not incorporated into a divorce decree.  The agreement does not mention modification of alimony and requires mutual agreement before any terms or obligations may change.   In this situation, alimony is not modifiable unless both parties agree to the change by amending the separation agreement.

Example 2: The parties sign a separation agreement that includes alimony that is incorporated into a divorce decree.  The agreement does not mention modification of alimony and requires mutual agreement before any terms or obligations may change.  However, the divorce decree signed by the judge has language in it that says it incorporates all the terms of the agreement. In this situation, alimony may be modified by filing a motion with the court alleging that there have been substantial changes in circumstances.

Example 3:

a. The parties never agreed and a judge had to enter an alimony order after a trial, or

b. The parties agreed but entered their alimony agreement as a consent document that became an order when it was signed off on by a judge.

In both these instances, alimony may be modified if a motion is filed alleging a substantial change of circumstances.

These examples are not exhaustive, but represent the most usual scenarios where the question comes up.

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Scott Allen is a divorce attorney in Raleigh, NC with over nineteen years of experience in all areas of family law litigation and settlement.  He can be reached at 919.863.4183.

Winning Your Case at Trial or Mediation

PlanWhether you are litigating or trying to settle issues of child custody, equitable distribution, alimony, or child support, putting your best case on is important.  The issues at stake are about your children and financial security and you do not want to have any regrets.

Below are suggestions to help you do as well as possible whether you are litigating your case or trying to settle it.

  1. Make Sure Your Attorney Knows All the Facts:  Never leave out critical facts because you believe they are embarrassing to tell your attorney.  Remember, the other side may bring these up and you do not want your lawyer to be surprised or unprepared because you did not warn him in advance.   Tell your lawyer everything.
  2. Take Care of Your Responsibilities While the Case is Pending: Courts do not react well to destructive actions aimed at hurting your spouse. Withholding support, allowing the utilities to be cut off, not paying the mortgage… these are all destructive acts that courts do not like.
  3. Control Your Online Presence: Do not post negative, vicious, threatening, or other comments about your spouse, your divorce, or the process.   Do not post anything that you would not be okay with the judge reading.  be very careful in posting photographs of your children online.   In the past I have suggested not to post children’s photos at all, but if you carefully monitor the content and your privacy settings, judges are not inherently against the idea since many people use this as a way to share photos with family.    You should assume that anything you post online may be brought up in court.   The safest approach is simply to stop using social media until your case is settled or a judge makes a decision.
  4. Timely Comply With Court Rules and Discovery Requests:  Wake County has extensive local rules that require documents and information to be turned over.  Also, nearly every case will have discovery requests from both side where documents, photographs, diaries, calendar, and journals are requested.  You are required to comply with the local rules in your jurisdiction and legitimate discovery requests..   Be careful, because if you do not timely provide the documents and information requested you will likely be sanctioned by the court. Sanctions can consist of attorney fee awards, contempt of court, and/or the court preventing you from putting on evidence.
  5. Email, Texts, and Phone Records:  In most cases where there are allegations of wrongdoing there will  be requests for email, text messages and phone records. The attorney may also request to make a duplicate image of your computer hard drive to obtain all of the files and data on it. When faced with this prospect many people attempt to get rid of the contents of their computer. Destruction of potential evidence is a bad idea.
  6. Depositions:  In many cases each party’s deposition will be taken.   A deposition is a proceeding that takes place in one of the attorney’s offices where your sworn testimony is taken.   Depositions are important.  Your deposition may be used at trial to raise questions of your credibility if you testify differently at trial than you did in deposition.   You should prepare carefully for your deposition with your attorney.
  7. Dress appropriately for court and mediations: This means a suit and tie for men and a conservative suit, dress or skirt and blouse for women.
  8. Follow the Rules of Decorum:   Turn your phone off.  Don’t wear a baseball cap.  Do no chew gum. Be respectful to the judge, the clerks of court, opposing counsel, and your spouse. Everything you do in the courtroom is visible to the judge, and judges watch behavior carefully.

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Scott Allen is a divorce attorney in Raleigh, NC with over nineteen years of experience in all areas of family law litigation and settlement. He can be reached at 919.863.4183.