What is a Fair Settlement in My Divorce Case?

Allen & Spence“Fair” is a difficult word in family law cases.   There is little fair about the loss of a marriage and family.  Therefore, “fair” is a word I try to avoid.

Instead of the word “fair” I usually focus on the word “reasonable.” “Reasonable” invites a more objective and less subjective focus.

So with those semantics out of the way, when you are discussing settlement how do you know what a reasonable settlement is?  That’s a question I get asked all the time.  It usually is formed around questions from my clients such as “is this a good deal” and “how should regarding respond” and so on.

So what is a reasonable settlement?  In almost every situation the standard of reasonability of a settlement option is what  judge would do after hearing the facts of your case.   If you accept more if you’re able to negotiate more than a judge would likely award to you then you have a very good deal. If you accept less than a judge would likely award you then your deal is not so good.

That always invites the question: “Thanks for that Scott, but how am I to know what a judge is likely to do?   The answer to that is where the problem arises.  In Wake County, like most North Carolina  judicial districts, there is more than one judge getting sitting for domestic law cases. Every judge is different and in North Carolina family law cases the district court judge is generally granted very broad discretion in interpreting the evidence and applying the evidence to the law.

Therefore, it is not easy to predict what a judge will do.   It is certainly not possible for an attorney to promise you that he or she knows what a judge would do.

What you have to do is rely on your attorney to guide you. Your attorney’s experience and knowledge in handling cases cases in front of the judges where your case is to be held are the important issues.  With that knowledge gained from experience, your attorney will be able to suggest likely outcomes so you can then decide if the settlement is reasonable.

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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

Facebook and Social Media in your North Carolina Divorce

be carefulBe careful what you put on the internet.   Your spouse, your boss, or your spouse’s lawyer might see it and might use it against you.

First some background.  I have been doing this long enough to remember the pre-internet days.  Back then, cases revolved around phone messages, actual paper letters, private investigator reports, non-digital photographs and video recordings (played on a TV in a  courtroom with a VCR attached).  How times have changed!

Today the typical family law case will have emails, text messages, print outs from twitter, Facebook, or other social media, cell phone pictures and just about any device from an IPad to an Android device playing digital photos in the courtroom.

Don’t post anything on the internet that you will regret later.   To put it another way, don’t post anything on the internet that you would not be proud for a family court judge to read or look at in the courtroom.    While it’s not possible to list everything you could do on the internet that could work against you in a case, here are some examples:

  • Don’t belittle or attack your spouse, your spouse’s lawyer, or the judge.
  • Don’t post photos of yourself drinking or engaging in illegal behavior.
  • Don’t use inappropriate language.
  • Don’t talk about your case.
  • Don’t post photos of yourself with or photos of your dates, love interests, and/or sexual partners until your case is over or settled.
  • Be careful posting photos of your children.

Social media is a minefield.  Be careful where you step.

 

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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.

Contempt and the North Carolina Child Custody Case

North Carolina law provides that violation of a court order is punishable by the contempt powers of the court.  What is contempt of court?  How is it used in child custody cases?

First a few general observations.

  1. A separation agreement or contract is NOT punishable by contempt unless it has been made into a court order or judgment in some way.
  2. Contracts and separation agreements are generally enforceable with an action for breach of contract or specific performance.  These are time-consuming and expensive actions to file.
  3. Only orders of a judge are enforceable by contempt of court.
  4. The contempt process, compared to actions for breach of contract and specific performance, is quicker to prosecute.
  5. There are two kinds of contempt: civil contempt and criminal contempt.
  6. The contempt statutes in North Carolina are found in the North Carolina General Statutes in chapters 5A-11 to 30.
  7. Since a punishment for contempt can be jail time, there is an appointed attorney if the person being accused of contempt can’t afford a lawyer.

What is Contempt of Court?

Contempt of court is when a judge finds that an individual has violated a valid order and enters some kind of sanction.  Depending on the kind of contempt, the sanctions can include jail time, attorney’s fees, etc.

How is Contempt Used in Child Custody Cases?

This is best explained with an example.   Let us imagine Bob and Jane are the parents of Mikey.  Mikey is with Jane one week and with Bob the next pursuant to a court order. What does Jane do if Bob refuses to return Mikey at the end of his week?    She files a motion for contempt and asks the court to punish Bob for his violation of the court order.  The process goes like this:

  • The motion for a judge to enter a show cause order of contempt is filed.
  • The judge reviews the motion and decides whether or not probable cause exists to enter and order for Bob to come to court and explain why he should not be held in contempt.
  •  At the first hearing the judge advises Bob that he has a right to an attorney and gives him the choice to waive his right, hire a private attorney, or apply for an appointed one.  If Bob elects to apply for a court appointed attorney, he has to fill out a financial statement that the court reviews to determine if Bob can afford to pay for a lawyer.
  • On the date of the hearing both sides put on evidence and the court decides whether or not Bob is in contempt of court.

 

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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.

Divorce and Property: What do we do with the House?

the marital residenceThe marital residence is frequently the largest (no pun intended) marital asset.  The marital home presents various issues: (1) what happens to the equity? (2) who gets it? (3) what if the mortgage is in both names?

While this article can’t answer all possible issues that would arise about the marital residence in a separation, let’s touch briefly on the issues outlined above.

Your Home’s Equity?

When you talk to a divorce lawyer and he or she asks you about your home’s equity, they are generally looking for a number that is the difference between the market value of the house and what you owe on it.  For example, let’s say you think your house would sell for $200,000 and you and your spouse owe $75,000 on the mortgage.   The equity would be $125,000.    Note that this number is before any costs of sale like realtor’s commissions.

Who Get’s the Home?

In general there are three options: (in no particular order)  the husband gets it, the wife gets it, or it’s sold and the proceeds of sale are divided in some way.

Which option is best for you will depend on circumstances of your case.  For example, if a parent needs to be in the house for the stability of the children, that might be important to the court.    It is also important to know if there are enough other assets to get an even distribution if one spouse keeps the house (and its equity).

What about the Mortgage?

This is an important question.   If a mortgage is in joint names, judges will want to see the spouse who is being awarded the house take actions to refinance the mortgage so that the credit of the other spouse is not tied up in the house debt.

Tied up with the ability to pay the mortgage are all the cash flow issues such as alimony, postseparation support, and child support.   All of these possible claims must be examined in the context of the home and its mortgage.

Do you have questions? 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.

Why You Need a Plan for your North Carolina Divorce

Plan for your NC Divorce“By failing to prepare, you are preparing to fail.” 
― Benjamin Franklin

“Give me six hours to chop down a tree and I will spend the first four sharpening the axe.” 
― Abraham Lincoln

“Someone’s sitting in the shade today because someone planted a tree a long time ago.” 
― Warren Buffett

Before you do anything else, make a plan.   Don’t move out.  Don’t approach your spouse about a divorce.  Don’t tell your children you are leaving their mother or father.  Don’t move out of state.   Don’t take all of your money out of savings and put it in a shoe box.   Don’t do any of these things without a plan in place.

How do you get a plan?  Simple.   You meet with a professional who knows knows the law and who cares about your situation, make a plan, and make it happen.

 

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Scott Allen is a divorce attorney in Raleigh, NC with over eighteen years of experience in all areas of family law litigation and settlement.  sallen@allenspence.com    919.863.4183