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

Mediations and Mediators

I frequently get asked about mediation.  What is it?  What does it cost? How can I get my spouse to mediate? What happens in a mediation? Let’s explore these issues in the context of a North Carolina divorce case.

What is Mediation?

Mediation is a dispute settlement process wherein a neutral person (the mediator) seeks to find areas of compromise between the sides in a case on the issues brought to mediation.  For example, in a child custody case where the parents can’t agree on how to share custody, the mediator tries to get the parties to recognize the benefits of settlement, the risks of letting a judge make a decision, and explore the areas of common ground.   A mediator is not a judge and will not make a decision; the mediator works as a facilitator.  Unlike a court case, which is public record, the mediation process is confidential.

What does Mediation Cost?

In Wake County, a private mediator for a family law case will be in the range of $225 per hour (sometimes more, sometimes a little less).  A successful mediation can occur in anything from a couple of hours to all day.  It depends on the complexity of the issues and the positions of the parties. A successful mediation is almost always less costly than litigation.  Furthermore, the cost of the private mediator is usually split equally between the husband and wife.

How Can I get My Spouse to Mediate?

If you have an attorney, talk to him or her about mediation and have them make a proposal to mediate the case.   Usually all you have to do is ask.  Plant the seed that you want to resolve your differences amicably and without the cost and stress of litigation.

What Happens in a Mediation?

They usually go something like this:

  • You arrive at the mediator’s office and meet your lawyer there.
  • You might arrive a little early to review last-minute matters (you and your lawyer should have mostly prepared prior to the mediation).
  • The mediator will do an introductory session, explain what will happen, and have you sign the mediation contract if you have not already.
  • The process will begin with the mediator talking to each side and understanding what the issues are.
  • Once the mediator gets an idea of the issues, he or she will start carrying proposals back and forth.  The goal is to narrow issues and get to compromise.
  • A good mediator will explore options and avenues for compromise.
  • A good mediator listens to understand what the issues are and makes each side feel like they are being heard.
  • These efforts will continue as long as progress is being made.
  • If successful, the parties will sign an agreement at the conclusion of the mediation.

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Scott Allen is a trained mediator and 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.

NC Child Support – Worksheets A and B

money issuesChild support under the North Carolina Child Support Guidelines is based on a number of variables.   I frequently get questions about the difference between Worksheet A and Worksheet B.   The application of these worksheets can result in severe changes to the recommended child support order.   Going into a child support case, it is important for you to understand what will cause the calculation to change based on the number of overnights and the sharing of expenses.

Q:  What is Worksheet A?

A:  Worksheet A under the North Carolina Child Support Guidelines is used when the parent has primary physical custody of all of the children for whom support is being calculated. A parent has “primary physical custody” under the child support guidelines if the child lives with that parent for at least 243 nights during the year.

Q: What is Worksheet B?

A:  Worksheet B is used when (a) the parents share custody of all of the children for whom support is being determined, or (b) when one parent has primary physical custody of one or more of the children and the parents share custody of another child.  Parents share custody under WorkSheet B of the guidelines if the child lives with each parent for at least 123 nights a year and each parent assumes financial responsibility for the child’s expenses during the time the child lives with that parent.

An explanation of the Worksheet A vs. Worksheet B explains why in North Carolina both parents have a responsibility to financially support their children.   In almost every case, the child support guidelines will have one parent pay something to the other even if custody is shared equally because most of the time the incomes of the parents are different and they have different expenses.

 

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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 including child support. 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.

NC Child Support – Is it Tax Deductible?

money issuesNC child support is not taxable as income to the recipient parent and is not a tax deduction to the payor parent. This applies whetehr it is paid as temporary child support  or is the result of a final hearing on child support.  Similarly, a parent receiving child support does not have to claim it as income.

Generally, you are allowed to claim one exemption for each person you claim as a dependent. The basic rule is for divorced or separated parents is that the parent who has custody of a child for more than half of the tax year is the parent who provides more than half of the child’s support and is thus entitled to the exemption for the child.

There are exceptions: First, if the custodial parent signs a statement or declaration that he or she will not claim the exemption for the child, and the non-custodial parent attaches this declaration form to his or her tax return filing. Second, if the custodial parent signs a decree or agreement that states he or she will not claim the exemption for the child.  Third, there is a court order from a state judge that entitles a parent to claim an exemption.

In some situations, you may also be able to claim a credit for certain kinds of child care expenses.   Generally. in order to qualify, you must pay these expenses so that you can work or look for work. Furthermore,, to be a qualifying person for the child care tax credit, your child must be a dependent for whom you can claim an exemption. If you are divorced or separated there is a possible exception to this rule may apply:  if you are the custodial parent, you can treat your child as a qualifying person even if you are unable to claim the exemption. If, however, you are the non-custodial parent of the child, you cannot treat your child as a qualifying person, regardless of whether you can claim the child’s exemption or not.

These rules are complicated and subject to changes in the law.   Before filing a return or making a decision, talk the issue through with a tax professional and/or consult with the IRS.  

To recap, the IRS puts it this way:

“Question: Are child support payments deductible by the payer or can the payer claim an exemption for the child?

Answer:

Child support payments are not deductible by the payer.

  • Child support payments are neither deductible by the payer nor taxable income to the payee.
  • The payer of child support may be able to claim the child as a dependent.
  • The parent with whom the child lived for the greater part of the year is the custodial parent for income tax purposes.
  • Generally, the child is the qualifying child of the custodial parent, and the custodial parent is allowed an exemption for the child if the other dependency tests are met.
  • The noncustodial parent may claim an exemption for the child if the custodial parent signs a Form 8332 (PDF),Release/Revocation of Release of Claim to Exemption for Child by Custodial Parent, or a substantially similar statement, and the noncustodial parent attaches it to his or her return.”

For more information about taxes and divorce read this article fore more North Carolina child support information and this one for North Carolina alimony.

 

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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.