The most difficult time for a family is during divorce or separation. Not only is it traumatizing to the couple but also it affects their children.   Several issues follow a divorce or separation. Such issues include child support, alimony, post separation support, and equitable distribution of property among others.

In the above examples, one of the most difficult for families in North Carolina is child custody. Child custody is difficult because it impacts the children in ways that can be far-reaching, especially if the parents have lots of conflict between them.   Therefore, the goal of parents should be to reduce conflict and reach an agreement that is best for the children..  However, what happens when parents cannot agree what is best for their children?

Absent a court order or written agreement in North Carolina, both the parents have equal rights to the custody of the child.    The law in North Carolina does not have a predisposition towards the mother or the father in child custody cases. Third party such as grandparents and other relatives can also have the right to the custody of a child in certain situations.

In North Carolina, the law of “best interest” applies to child custody cases.   The best interest of the child is, in the words of a famous child custody case from North Carolina, the “guiding star” upon which courts make child custody decisions.

There are two types of custody that courts makes decisions about: legal custody and physical custody.   Legal custody is about who makes decisions.  Physical custody is about the schedule of time with each parent.  These kinds of custody may be shared in various ways.  For example, one parent might have sole physical and legal custody and the other parent have visitation.  The parents might share joint legal custody and one parent has primary physical custody and the other parent has visitation

Child custody can be a matter of agreement between the parties. In such cases, they will sign a document settling child custody. However, in cases where they can not agree, the parents may go to mediation and court to resolve their differences.

In mediation a third person who is neutral comes in to try to facilitate an agreement between the two parties.  The mediator does not make any decisions; the mediator simply helps the parties get to a settlement.    Mediation is often less expensive and less time-consuming than litigation in court.

May the child decide whom he or she lives with?   In North Carolina, the answer is no.  However, the court may decide to consider the wishes of children if they are of an age where they can honestly express their preferences.

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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.

If I don’t know the answer to that single question, I cannot help my client.  Why?  Because if I don’t know what is important to my client, i cannot begin to help them achieve their goals.  Make sure your attorney asks you what is important to you.

• Do you worry about your financial security?
• Are you worried about the welfare of your children?
• Are you worried about maintaining a working relationship with your spouse after the divorce?

These are just examples.  One or more of these things, or other things, might be important to you.   Tell your attorney what is important to you.

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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.

“By failing to prepare, you are preparing to fail.” 

“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

Here are some basic rules:

1. Stand when court is opened, recessed or adjourned for the day.
2. Stand when addressing or being addressed by the judge.
3. In Wake County, the deputy sheriff will call the court to order.
4. Listen to the deputy, he or she will give instructions at the beginning of court and frequently the instructions will be based on the particular judges rules in his or her courtroom.
5. Don’t wear a hat or ball cap in the courtroom.
6. Do not approach the judge or a witness without asking for permission of the court.
7. The space between the bar and the bench is reserved for attorneys and court personnel   Don’t go into that area unless directed by the deputy, the judge, or your attorney.
8. The witness stand is also called the dock.  Prior to testifying you will be sworn or affirmed by the judge or the clerk either at counsel table or once you are in the dock.
9. In NC courts, witnesses are normally examined by the attorney from a seated position behind one of the counsel tables.
10. Counsel or pro se parties should request permission before approaching the judge or a witness.
11. Cell phones and pagers should be turned off or in a vibrate mode. Computers should be used with audio off.

Use common sense and follow these rules and you will be on your way to making a favorable impression.

There are basically three solutions to the problem:  ignore the rules and law and do the best you can in court, educate yourself as best you can, or hire an attorney.  It should go without saying (but I will, nevertheless,say it):  do not ignore the rules and the law!   Your case will be jeopardized, you may be sanctioned, and you might not be allowed to put on evidence.   If you ignore the rules and the law, bad things will happen.

You can try to educate yourself.  I say “try” because unless you have the ability to push yourself, spend hours reading laws and cases, and learn how to be your own lawyer,  you will likely never be able to pull it off effectively.   Furthermore, when you represent yourself, it will be very difficult for you to be objective since you are, so to speak, in the middle of the storm.

Consult with a lawyer.  It need not be me or my firm, but get professional help.   A healthy portion of my practice is cleaning up legal messes that have been created by parties with good intentions trying to do it themselves.  In most cases, legal help on the front end of the problem would have avoided or reduced the self-inflicted damage.

So, how do you get help with your case?   You pick up the phone and call a lawyer.  You schedule a consultation, and you take your paperwork and issues and concerns in and get advice and direction.   If you go to someone who knows what they are doing, you should get a plan to move forward, an idea of the costs involved  and a menu of options to work towards making your goals a reality.

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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.  Call him at 919.863.4183 to get help with your case.

• Judges do not like to spend court time valuing and dividing up personal property like furniture, garden tools, decorations, and clothing.
• Lawyers, even though they are paid to help you work out the issues, don’t like spending their time or your money arguing over personal property like furniture, garden tools, decoration, and clothing.
• For purposes of court action and settlement, the price paid for an item of personal property is not usually the value at which it will be assigned.

Every lawyer I know has a story about a fight over personal property spinning out of control.  One story I like to recount is a fight I heard about over a particularly common and inexpensive set of  stainless steel flatware that the couple had been using for the fifteen years of their marriage.  This used flatware is the kind of thing you might find for $10.00 at a yard sale on any Saturday morning.     The parties and their lawyers argued about if for a couple of hours at a mediation.   The combined cost to the parties including their attorneys’ fees and mediator costs was close to $1,000.

The lesson is simple, if you are involved in a fight over personal property try to find a way to resolve it.

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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.

It’s simple.   If you as a witness in court or a party  lie to the court or allow a misimpression to form, you will have lost your one shot at believability and you will never regain the trust and confidence of the court.    Credibility, once lost, is very difficult if not imposible to recover.  The loss of credibility can and will have a negative impact on your chances of getting the result you want from the court.

Here are some tips:

> Disclose everything to your lawyer.  If you withhold necessary information, your lawyer can’t properly prepare and pursue your golas or respond to matters in your case.

> Be honest with your lawyer.   Even if you have done some things you are not proud of, make sure your lawyer knows.  That information is necessary so you can get advice that has considered the true facts, not just the facts you think are helpful to your case.

> Take the oath seriously: tell the truth in court, your deposition, and when you sign a court paper.

North Carolina originally adopted its law from the common law of England.   Much of our law still has principles that can be traced back to our adoption of the common law.  In the family law context, a good example of that is the law related to alienation of affections and criminal conversation.  Later on, efforts were made to codify the law.  That means parts of the common law, as well as new laws that were needed in a society of increasing complexity, were put into statutes.  These are now known as the North Carolina General Statutes.  They can be found online in several places, one of which is at the source of the statutes, the North Carolina General Assembly.

You might wonder about federal law… that is the law of the United States… and the impact on family law.  For reasons that are historical and constitutional the law of divorce, child support, child custody, alimony and equitable distribution are matters os state, not federal law.  There are some interesting examples of some overlap and impact of federal law and Supreme Court decisions on state law, but in most situations and most cases, the impact is minimal.

Apart from statutory law, there is a body of law from the North Carolina appellate courts that continue to explain, define, and interpret the common law and the statutory law.   There is a constant stream of appellate decisions that impact the law.  As an example of how complicated this is, take a few minutes to read this example case from 2012.    There are many cases each year where the appellate courts touch on issue of family law.   As a pro se litigant it is extremely difficult to learn all that can be learned about an area of family law that you are involved in.  However, if you want to do as well as you can, you need to educate yourself.

In addition to the substantive law in an area, there are also laws related to procedure and evidence.  These are known, respectively  as the North Carolina Rules of Civil Procedure and the North Carolina Rules of Evidence.  The Rules of Civil Procedure, for example, cover such things as depositions.  The rules of evidence deal with what is proper evidence in court, how it is submitted, hearsay, etc.

• Confirm in advance that your case is on the court calendar.   You can check here.
• Dress appropriately.
• Know the law on the issues you have before the court.  For example, if your issues is child suport, your can review the statutes and do interent research.
• Be on time.   The calendar call from most family court cases in Wake County is 9:00AM.   Give yourself time to find parking in downtown Raleigh and to make your way through security in the courthouse and onto the elevator.
• If you can not be on time for court or some emergency arises, try to call or contact the case coordinator for the judge assigned to your case.  Do this before court; do not wait or delay.
• Turn your cell phone off once you get in the courtroom.
• Stand up when your name is called.  Answer clearly and advise the court of any issues with your availability for the hearing.   It’s best not to complain to the judge about your work schedule… everyone in court is missing work.
• If you have a motion related to the hearing or trial going forward that you want to make, such as to continue the case, mention it when the judge first calls your case on the court’s calendar.
• When your case is called take a seat with your paperwork at one of the tables.  You are not allowed to bring a friend or family member to the table with you unless that person is a lawyer.
• If you have any friends, witnesses or family in the courtroom on your behalf, tell them in advance that they are not to speak up in the courtroom or cause any disturbance.  Explain to them that their opportunity to tell their side of the facts will be on the witness stand.
• Bring several copies of any documents you want to try to get into evidence.
• Do not argue with the other party.
• When it is your turn to ask the other party or a witness questions, it is best to make the questions short and clear.  Make sure to ask questions of witnesses and not make statements.
• A hearing has a set routine and procedure.
• When an objection si made wait for the judge to rule on the objection before proceeding.
• Take notes when the judge issues the ruling.  If you need clarification, it’s best to ask while still in the courtroom   It does little good to argue with a judge about a ruling and it is better to ask questions and seek clarification.

Today we will talk about some very important rules…. the Wake County Local Rules.  I have watched many pro se litigants and very few seem to take the time to study the rules.   It’s a tired statement but true: you can’t expect to win the game if you don’t know the rules.

The local rules in Wake County for family law cases are built around the concept of a family court system that Wake County adopted some years ago.  The family court system is designed to increase efficiency, cause cases to go through the system faster, and set up rules about a range of issues from the beginning to the end of a case.

A close reading of the Wake County Local Rules will show you what each stage of the court process looks like.  The rules define what must happen before court such as the exchange of certain documents and affidavits.  They also explain how continuances are dealt with, the role of the case coordinators, and many other details are in the local rules such as the length of certain temporary hearings such as temporary child custody and temporary child support.

If you decide to represent yourself, I strongly urge you to create a notebook that you will keep for the sole purpose of having one place to go to for the local rules related to your case.  Use a three-ring binder and put a copy of the local rules in it.

Examine what claims are in your case and study the rules on each claim carefully and take notes and put those notes in the notebook too.  In a later article I will cover where you can find the law for your claim or defenses, and you should take notes and put that in your notebook too.

________

Scott Allen is a family law attorney with over eighteen years of experience in all areas of divorce practice in North Carolina.

Here is a non-exhaustive list of some general guidelines.  I hope they help:

• You will be expected to know the local rules, the rules of evidence, and the law.  This means you need to educate yourself.  Some attorneys  including me, will agree to provide consulting services at hourly or flat rates to make you better prepared.
• Most of the statutory law for divorce, custody, alimony, child support, etc. is found in Chapter 50 of the North Carolina General Statutes.
• Evidentiary rules can be complicated.  There are hearsay rules and there are exceptions.  When in doubt have live witnesses in court ready to testify rather than trying to use letters and affidavits.
• The Wake County Family Court Rules and many helpful forms can be found on the NC AOC website.
• The Wake County Family Court Calendar is available online.
• Promptly comply with discovery requests and disclosure requirements.
• Comply with subpoenas.
• Is you want a subpoena you will need to get it signed by the clerk or the judge per Rule 45.
• Be on time for court appearances.
• Dress appropriately for court.
• When an objection is made in court wait for the judge to rule and don’t talk over the judge.
• Stand up when addressing the judge.
• Ask permission when in doubt about something you want to do in the courtroom (such as approaching the judge or a witness on the witness stand).
• Make at least three copies of documents you want to try to get into evidence.
• Treat everyone respectfully even if you don’t particularly like your ex, his/her lawyer, etc.

I’m not talking about situations where there is an emergency case filed (like emergency child custody or a request for a domestic violence protective order); here I am talking about situations that have been developing for months and the potential client calls just before something big is going to happen in his or her case.

As a naturally inquisitive person I always ask the question, “Why did you wait until now to call me?”  The answers I get are all over the place. Here are just a  few of the actual answers I have heard to that question:.

• “I don’t know.”
• “I thought we could work it out.”
• “I thought I could handle it and it’s, well, complicated.”
• “I just found out he/she hired a lawyer, so I guess I need one too.”
• “I don’t want to be sanctioned by the judge!  What does “sanctioned” mean?”
• “I’m scared to go to court alone.”
• “I don’t want to go to jail.”
• “My _____ finally convinced me to get a lawyer.”
• “I did not have the money to hire a lawyer.”
• “I’ve been on vacation.”
• “My previous lawyer just fired me.”

Don’t Dress Like This Guy

I have seen all these things I’ve listed below.  Let them be amusement for the wise and  words of caution to the foolish:

1. Don’t carry alcohol with you.
2. Don’t ask for a break from your hearing saying you need to run get “paperwork” out of your car and then do cocaine in your car and come back to court without the “paperwork.”
3. Don’t threaten your spouse.
4. Don’t talk over the judge.
5. Don’t wear a t-shirt to court that says “F___ Authority!”.
6. Don’t go target shooting and inadvertently leave an empty pistol magazine and ammo in your briefcase and expect to get through security.
7. If you are accused of domestic violence do not wear a sleeveless shirt to court.
8. Don’t ever wear a sleeveless t-shirt to court.
9. When the deputy asks you to take your hat off in the courtroom don’t argue with him.
10. If you are accused of domestic violence don’t try to sit next to your accuser in the courtroom.
11. Don’t post on Facebook anything that you would be embarrassed about if it is shown or read in open court.
12. Don’t tweet from the courtroom.

Here’s an outline for you fo what happens in the usual family court case.  Each outline I give to a client is specific to his or her case and is much, much longer than what you see below, but this will give you an idea what to expect as a case is presented and goes forward:

1. Calendar Call – I will meet you outside of the courtroom at 8:45.  The judge will call the calendar at 9.  I will be there for you so don’t worry about standing up and saying anything.  I will take care of that.  the judge will tell us when he can reach our case.
2. Opening Statements – This is where I will tell the judge what the evidence is expected to show, why we are here, and what we want to accomplish in the hearing.
3. Evidence – Each side put on their evidence.  The other lawyer will call witnesses and I get to ask their witnesses questions.  I will call witnesses, ask questions, and present documents.  (Usually I will have written questions or an outline that the client and I have worked on detailing what each witness is likely to say, what we will ask, etc.)  Usually either the party filing the lawsuit first (the plaintiff) will put on evidence first, but sometimes if it is a motion hearing then the party who filed the motion will get to put on evidence first.
4. Closing Argument - this is where I will argue that the court should make certain findings and rule in a certain way.

Every family law case is different.  The evidence in a case about equitable distribution will be very different than evidence in a child custody case.  However, the basic outline above can be modified and expanded to fit the needs of each case.   I find that my clients appreciate knowing what to expect and that I am prepared for their case and that basic courtroom procedure does not really change from case-to-case.

There is much more to know about courtroom procedure than what I have outlined above.  For example, in North Carolina you must ask witnesses questions while seated and you must ask the court to approach the witnesses.  However, these kinds of things are for your lawyer to worry about.  As a party in a courtroom your focus should be on presenting a calm demeanor, telling the truth, and making sure you put you best case forward.

Rather than making you read more and then giving you the answer later, I’ve decided just to say it up front: under North Carolina law a child almost never has the final legal say as to which parent he or she will live with.  In other words, custody is always up to the judge.

If you have spent any time at all looking over our firm’s website, you know I am a strong advocate of parents trying to keep their children out of  custody fights.   I also generally don’t think a child should be put in a position of either feeling like he or she has to choose between parents or that the child has the power to make the choice.  All the judges I’ve ever been in front of seem to feel the same way.  I’ve heard judges explain to children who have been brought in for a custody case that the decision is not the child’s, and I have seen relief on children’s faces when they understand that.

The main determining factors that the judge will take a look at when deciding which parent receives custody are things like the  stability of the parent, their ability to provide for the child financially and mentally, and in general, just being a good model citizen and parent. It’s the judge’s job to award custody in a way to meet the best interests of the child.  A child’s statements about preferences are merely more evidence a judge can use in evaluating best interest.   Every parent knows that a child does not always know what is best for him or her.  Children,  by definition, lack the emotional maturity to make reasoned decisions.  That’s why the judge is free to agree with or disagree with the child’s own personal preference and is not required to do what a child says he or she wants.

When I get asked about a legal separation in North Carolina, I usually answer by explaining a bit about separation agreements.  A separation agreement is a contract that can resolve issues between the parties like equitable distribution, alimony, postseparation support, child custody, and child support.

This video explains some of the law surrounding these kinds of agreements.

Outline:

I hope you find this video helpful,  I put it together as a response to some questions I had been getting emails about and provides a basic overview of North Carolina divorce issues.

Divorce in NC Overview from Scott Allen on Vimeo.

Everyone has the right to stand up in their own case and be his or her own lawyer.  In legal lingo someone who represents him or herself in court is pro se, meaning he or she is “for one’s own behalf.”  What it really means in family court in North Carolina is that you are going it alone and you will be expected to follow the same rules, procedures, and laws that attorneys know to follow.

The real question, and the important question, is whether it is a good idea to handle your own divorce?  No, it is not.

In the usual family law case in North Carolina there are about five separate sub-parts in a normal divorce case: divorce, child custody, child support, spousal support, and equitable distribution.  Each of these is, in reality, a separate legal case.  For example, spouses can be divorced after one year of separation, but the decree of divorce will not resolve equitable distribution, child support, child custody, etc.

A decree of divorce is only a document that ends the marriage.  Other matters are usually settled by a separation agreement when parties can agree and by the district court judge when parties can not agree.  There are often tax and real property issues that need to be addressed and evaluated.  A mistake can be very costly.

In addition to the complex legal issues and the pro se party’s lack of training and knowledge in rules, procedure, and the law, it is extra-ordinarily  difficult for a pro se person to be objective.   Objective and reasoned guidance is one of the most under-appreciated benefits of having a lawyer.  It is hard to make good decisions when you are in the center of a storm.

If you decide to represent yourself to save money you must evaluate the cost of not having an attorney. Before you decide to  represent yourself, consult with an attorney and make informed decisions about the risks.

To obtain a divorce in North Carolina there are only a few basic requirements.

First, the party seeking the divorce must be a resident of North Carolina for at least six months prior to filing for the divorce.  To be a resident you must live in North Carolina with an intent to remain in the state.

Second, the spouses must be separated for at least one year.  Being separated means being out from under the same roof and one of you has the intent to be separated.    The year of separation is not stopped if, for example, the spouses do things together or even occasionally have sexual relations, however, such conduct can complicate the issue of the separation.

Absolute divorce must be distinguished from divorce from bed and board.   An absolute divorce means the marriage is dissolved and over.  It is final.

A divorce from bed and board, on the other hand, is a decree of  the court based on fault grounds that the parties are legally separated and cuts off certain rights of the spouses.   These kinds of divorces are relatively unusual.

Fortunately for those who live in Wake County and Raleigh, North Carolina, there are many resources that can help you.

• InterAct of Wake County – located on Oberlin Road in Raleigh, is a private, non-profit, United Way agency that provides safety, support, and awareness to victims and survivors of domestic violence and rape/sexual assault.
• Raleigh Police Department – has a Family Violence Intervention program and can be reached at (919) 996-3335. Of course, you can always contact the police by dialing 911 in an emergency.
• Wake County Sheriff’s Victims Services Unit – can be reached at (919) 856-5623 or 856-6816.
• SAVAN – 1-877-627-2826. Domestic Violence Victims (where the accused has been arrested) can call this number to find if a suspect is still in jail or can request to be notified when the suspect is released.
• Courthouse in Raleigh – the civil clerk’s office is on the 11th floor of the Wake County Courthouse and you may file a claim for protection under the NC domestic violence statute, NCGS 50B. The clerks there will give you paperwork to fill out and instructions on how to file it. The telephone number for the clerk’s office is (919) 835-3148.

The most important thing a victim of domestic violence can do is find a way to stop being a victim and involve the legal authorities and a lawyer to assist them.

Raleigh Divorce: Four Steps

Divorce and separation can be overwhelming.  If you are thinking about going through a divorce in Raleigh, I suggest you consider the following steps to help you get through it:

Check: There is lots of information on the Internet about divorce and divorce lawyers.  Look for at least two different lawyers and schedule consultations.  Search for experience.  Some lawyers will meet with you or talk to you for free, some charge a consultation fee.

Act: Meet with the lawyers you researched.   Meet with attorney who practices frequently in Wake County and is familiar with the local rules and local attorneys and judges.   Explain your situation.  Give background. Ask questions.  At the end of the interview ask yourself: Do I like this person?  Do I feel comfortable with him or her?

Plan: You are paying for your attorney’s advice and if you did your research you know you can trust your lawyer. Friends and family, although they mean well, are not divorce lawyers.   Heed your lawyer’s advice.

Do: Once you and your lawyer have a plan, work on it.   Take steps to protect your assets.  Try to set aside enough cash or credit to tide you over until property and support matters can be resolved.  Copy financial documents.  Journal custody matters for your lawyer.  These are but a few of the suggestions your lawyer may have.  Again, listen to your lawyer and act.

If you are thinking about divorcing or are going through a divorce in Raleigh or Wake County, NC this article is very important, so please read it carefully.

The law in North Carolina is that if a spouse does not make a claim for equitable distribution, alimony and postseparation support prior to the entry of their divorce judgment, that spouse’s right to ask for spousal support and division of property is lost forever.

Therefore, if you are filing your divorce in Raleigh at the Wake County Courthouse, or even if you have a Raleigh divorce lawyer, make certain that if you want to ask for spousal support or the court to divide your property in your Raleigh divorce case that you make those claims before the court grants the divorce.

Preserving Your Equitable Distribution Claim

Equitable distribution is the process by which the court divides marital and divisible property between spouses.  The failure to apply specifically for equitable distribution prior to a  judgment of absolute divorce will destroy the statutory right to equitable distribution.  N.C.G.S. § 50-11(e) provides that: “[a]n absolute divorce obtained within this state shall destroy the right of a spouse to an equitable distribution of the marital property under G.S. § 50-20 unless the right is asserted  prior to judgment of absolute divorce . . . .”

Be aware that unless the claim for equitable distribution is specifically preserved in the pleadings, it is not enough to have the words in the divorce judgment “reserving pending claims” if the claims are not pending.

Alimony and Postseparation Support

N.C. Gen. Stat. § 50-11(c) provides that a divorce obtained pursuant to G.S. § 50-5.1 or G.S. § 50-6 shall not affect the rights of either spouse with respect to any action for alimony or postseparation support pending at the time the judgment for divorce is granted.  The pleading setting forth the claim for alimony/postseparation support, therefore, must be filed and pending prior to the entry of the judgment of absolute divorce. N.C. Gen. Stat. § 50-16.2A(a) provides that the pleading must be verified and must set forth the factual basis for the relief requested. You should always include  allegations as to “dependent” and “supporting” spouse and sufficient allegations regarding the parties’ financial standing.

Moving is stressful under normal circumstances.  Moving is very stressful if it is the result of a separation or divorce.

Often, in the current economy, neither party is able to keep the marital residence and there are moves by both parents to new homes.  Frequently one spouse will want to move out of the marital home.

Here are some suggestions to make the process of moving less stressful:

• If you have children try to stay in the same school district where they have been enrolled in school.  For example, if the children are both enrolled in Enloe High School in Raleigh, seek out a new residence nearby that would not automatically require a change in school.
• Make certain you and your spouse are in agreement on who gets what personal property.  Don’t wait until the move to settle this.  Settle this before the separation if possible.
• Organize your move and use it as an opportunity to get rid of things that neither you nor your spouse wants to keep.  Some items may be good charitable contributions.  A good charity is the Salvation Army.  They have a drop off location and thrift store at 205 Tryon Road in Raleigh.
• Hire a mover or recruit friends and family to help.   Don’t try to do this yourself.
• Forward your mail and provide your new address to:

1. Your lawyer
2. Friends
3. Family
4. Church
5. Work / Employer
6. Doctors/Dentists
7. Organizations you belong to (alumni, community, etc.)

These suggestions should help your move easier and less stressful.

Mediation is a form of “alternative dispute resolution.”  It is a way to resolve cases that was an “alternative” to a trial or hearing.

At one time, not too long ago, this was a new idea in family law cases.  Now, if you file a financial case or custody case in Raleigh at the Wake County Courthouse, mediation is required.

It is a process by which the parties (and their lawyers) meet with a neutral person who assists in settling the differences.  That neutral person is called the mediator.

There are several advantages to mediating your Raleigh divorce case:

• It creates a framework of communication between the parties.
• It allows both parties to participate.
• It provides a private environment.
• It is a confidential process.
• It makes the parties invest in the agreement and thus increases the compliance.
• It is less expensive than litigating.

Choosing Your Mediator

Picking a mediator is the easy part.  Raleigh and Wake County are full of experienced and fair mediators.  In the same way you would pick an attorney who knows family law, find one who is also a family lawyer.  Preferably one who litigates cases.  Why would you want a mediator who also goes to court? Because the mediator has a clear reference of what judges do in various factual scenarios.

Furthermore, you don’t even have to pick a mediator in your custody case because one will be supplied by the Wake County Custody mediation office.

Preparing for Your Raleigh Divorce Mediation

Preparing is important.  If you are going to Raleigh child custody mediation through the county, your attorney will not be at there with you.  However, you should talk to your attorney prior to mediation to prepare.  If you are going to a financial mediation with your lawyer, make sure to prepare in advance and carry along important documents.

What is the biggest downside of this process?  It’s that it can’t force either party to be reasonable.  For mediation to work the way it is supposed to, both parties must engage in the process with an attitude of good faith.

Do you want to learn more about mediation?

You might want to read these articles:

• Should I Settle My Child Custody Case
• Wake County Child Custody Mediation
• Financial Mediation in Wake County

Do you need an attorney or a mediator?

If you need an attorney or a mediator in your case call Scott Allen at (919) 863-4183.

Don't Dress Like This Guy

When you have to make a court appearance at the Wake County Courthouse in Raleigh, whether it is for a pre-trial motion, a custody hearing or your divorce, it can be a nerve-racking experience.

There are many things during the appearance that are complex legal matters that your attorney will address.  However, there are some basic things you can do that will help you.

The way you dress and your overall demeanor in the courtroom will influence how you are perceived by the court.  How you are perceived by the court will have an impact on the result you get.

Dress for Success in Your Raleigh Divorce Case:

How you dress can be an extremely important part of a court appearance.  The dress code in court is pretty basic in nature and is really nothing to be intimidated by: dress professionally and conservatively.

No matter what your feelings are about having to be there (after all, who really WANTS to be in court?), the court deserves the respect of those who appear before it.  You should dress in a way that conveys respect for the situation.  After all, you are not going to a basketball game.  You are going before a decision-maker who can and will make a decision affecting your future.

A good reference point is to dress as if you were attending a formal business meeting such as a job interview at a bank.  For instance, a male attending his court appearance should wear a suit if they have one, but if not at minimum should wear some combination of a sweater, button down shirt and slacks.

Here are some more tips:

• Dress conservatively.
• Don’t try to make a fashion statement in the courtroom.
• Don’t wear loud colors.
• Dont wear a hat, clothes with slogans, or short pants.
• Wearing sun glasses in a courtroom is not a good idea.
• Avoid flashy jewelery.

The Right Attitude for Your Raleigh Divorce:

Along with your dress, your overall attitude and demeanor at the courthouse in Raleigh is vital.  Here are some further tips:

• Make sure to be on time.  When we show up on time for anything we are sending a message that we are taking that event seriously.  Traffic in downtown Raleigh is congested and parking can be difficult.  The address for the courthouse is: Wake County Courthouse, 316 Fayetteville Street, Raleigh 27601.  There are several parking decks, but the one at the corner of Davie and McDowell Street is easy to find.  I suggest planning on getting to the parking deck no later than 8:20am if your hearing starts at 9:00am.
• Be professional and polite.  Resist outbursts of any kind, even if statements are made you do not agree with.  All of your actions will be closely scrutinized by the court and you need to act accordingly.
• Don’t limit to being professional and polite to the courtroom,.  For example, do not talk about your case in the elevators.  Judges and court personnel use the same elevators.
• Be prepared.  The court’s time is valuable.  Do not be disorganized.  Your lawyer should help you with this.  If yo do not have a lawyer, make sure to have copies of important documents and have an outline of what you plan to say.

Why does how you dress and how you act matter?  It’s human nature.  Whether we want to admit it or not, we give credibility to statements from those who act and look professionally.

Credibility is key in a courtroom.   Judges have to determine credibility of parties and witnesses and they will use the same common-sense approach that we all use.

Not every case turns out the way you think it should.  Judges are people too: they sometimes make mistakes and they frequently get things right.  If you want proof of this, read over the decisions from the NC Court of Appeals where appellate judges review decisions by district court judges.  Better yet, go sit a day in family court on the 8th floor of the courthouse in Raleigh; you will get a notion of how difficult the job of the district court judge is.

What is the role of the judge in your Raleigh Divorce?

There is nothing in a judge’s job description about making people happy.  The basic job of the judge  is to apply the law to cases in a fair and just manner.  They administer justice.  They also have to make decisions using their judgment and often there is a great deal of latitude in what a decision could be and still be correct.

Take, for example, a custody trial.  North Carolina law requires the district court judge to make a custody decision based on the best interest of the child.  This standard has been around a long time and, in essence, requires the judge to consider evidence and make findings about what custodial arrangement is best for a child.

The court also has the job of putting weight on evidence and deciding on the credibility of witnesses.

What all this means is that if the judge carefully drafts the custody order and makes findings and rulings that are based on the judge’s view of best interest, the decision very likely will not be changed on an appeal.

What if the judge makes an error of law in your Raleigh Divorce?

Legal errors are errors or mistakes that a judge makes when either applying the wrong law or not applying the law properly to a case.

An example of a legal error is if a court order does not have findings of fact and conclusions of law.  Another (very rare) legal error would be if the judge prohibited a party from calling witnesses without any cause.   There are many examples of legal errors and every case is different.

If you think the judge made a legal error or mistake in your case, talk to your attorney.   Seek out a second opinion from another Raleigh divorce lawyer . Also, in many cases kinds of cases such as child custody, the district court judge only has a few rules to follow

What options are available to correct a judge’s mistake in a Raleigh Divorce?

The options are either a motion for relief pursuant to Rule 59 and Rule 60 of the NC Rules of Civil Procedure and/or an appeal.  All of these options are complex and have specific requirements that must be complied with.

For example, the Court of Appeals has said that temporary orders are generally not appealable.  Also, there are specific time requirements for request for relief.

In some situations the order of the court may be modified with an appropriate motion.  For example, custody, child support, and alimony may be modified if there is a change in circumstances in the future.

How much time do I have to address an order that has errors in it?

Unfortunately, time is not on your side.  As soon as you get the order you should schedule an appointment with a Raleigh divorce lawyer to review it.

Does a parent who can’t (or won’t) pay child support still have custody and visitation rights?  Under North Carolina law, the answer is yes.

A child has a right to be supported by his or her parents and the court has the authority to enter order establishing child support and enforcing child support.

A parent has a right to spend time with his or her child.  This right has been declared to be a constitutionally protected interest.

What this means os that a parent who does not pay child support or who is behind in child support still has a right to be with his or her children.  A parent who refuses to allow visits because the other parent is behind or not paying support may be held accountable by the courts.

However, be aware that non-payment of support ordered could be a grounds for termination of parental rights.  If a parent’s parental rights are terminated for non-payment of support (or for other reasons such as abuse or neglect) that parent does not have any right to visitation or custody.

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Raleigh divorce lawyer Scott Allen handles modification of custody, child custody, child support, temporary child support, and temporary custody hearings and has over seventeen years of experience.  

If you have questions or need assistance call him at (919) 863-4183 or email at sallen@allenspence.com.  

Divorce – Reduce its impact on Children

Divorce can be stressful, sad and confusing for children. At any age, children will feel uncertain about what life would be like or angry at the prospect of their parents’ divorce.

To avoid trauma, parents need to make the process less painful to their children and the following tips can help.

Honesty: Children are entitled to some explanation about why the parents are divorcing, and a long-winded explanation will only confuse them. The parents should tell them something that is simple and honest but not accusatory of the other parent.

Reassurance:  In many divorce scenarios the child might assume that the parents are separating because of something he or she did. A simple reassurance will help them to know that they are not the reason.  Letting the children know that you still love them can be a very powerful message for them. Reassuring them that you still care about them is also of great help.

Address Changes: The worst fear about divorce in a child’s mind is change. The children might be scared about changes that might take place in their life in case the divorce goes through. Parents should preempt their children’s questions about changes that might take place by acknowledging that some things will be different but others will not change.

Respect and Restraint: The explanation should be offered by both parents. Parents should show respect and restraint when giving reasons so as not to bias the child’s opinion on one parent, but they should provide a united front.

Blame games: The parents should also avoid blaming each other or talking to outside parties about the divorce in the presence of their children. Avoid bad mouthing your spouse since this can make the child resent one of her/his parents. Let your child know that even if you have separated, you will continue to love them unconditionally. This is where visitation rights come in. The children need to feel that they still have the love of both parents even after separation.

Seek Advice:  These guidelines may not work in every situation and are one person’s view.  If you have a counselor or spiritual advisor, seek other advice too.

Divorce is traumatic for a child, and it is up to you as a parent to ease the pain and confusion.

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Raleigh divorce lawyer Scott Allen handles modification of custody, child custody, and temporary custody hearings and has over seventeen years of experience.  

If you have questions or need assistance call him at (919) 863-4183 or email at sallen@allenspence.com.  

How are retirement benefits divided in your divorce?

The most valuable assets of most marriages are the home and retirement benefits.   North Carolina’s equitable distribution law allows the court to divide these (and other) assets if they are marital property.

Unlike financial assets such as savings, money market and checking accounts, it is unwise (or even impossible in some circumstances) to simply withdraw money from a retirement account like a 401(k) or IRA to transfer to the other spouse.    The reasons that withdrawing funds from these accounts is unwise is because of the severe tax consequences to certain kinds of withdrawals form these kinds of accounts.  A special kind of document is required in most circumstances to allow the division, and this is called a QRDO.

Qualified Domestic Relations Orders (QRDOs) are court orders with specialized language that are applied to retirement plans subject to the Employment Retirement Income Security Act (ERISA).  There are other non-ERISA retirement plans that are also frequently divided in divorce.  These include state, federal and military retirement and pensions.

Keep in mind that there are two basic types of retirement assets: defined benefit plans and defined contribution plans.     The type of plan has an impact on how it is valued for purposes of figuring out what a reasonable distribution of property

Defined Contribution Plan (DCP):

A 401(k) is a defined contribution plan.  Generally speaking, the value of a DCP is the account statement balance on any given date.  For example, if someone wants to know the value of  a Fidelity 401(k), simply collect the account statement on the date that is of interest.  Usually this date is the date of separation of the parties.

Defined Benefit Plan (DBP):

A company pension is an example of a defined benefit plan.   The DBP is characterized by statements showing what a person’s retirement would be if they retire on a certain date in the future and the statement usually shows this as a monthly amount.   This kind of retirement plan is more difficult to value than the 401(k).   To obtain a present value, a math process has to be performed where the goal is to calculate the present value of the future stream of retirement benefits.  With any prediction such as this, the value will change based on the variables used.  The variables in this kind of present value calculation are life expectancy of the plan participant and the discount rate.

Conclusion:

The QDRO is a complex document because not only must it be a proper court order, it must comply with the ERISA requirements.

How to get assistance with a QDRO in your case?  There are several choices.  Your lawyer can help you with it.  You can also get information from the retirement plan administrator.

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Raleigh divorce lawyer Scott Allen handles equitable distribution, retirement division, and other related matters.

If you have questions or need assistance call him at (919) 863-4183 or email at sallen@allenspence.com.  

Under the NC Rules of Civil procedure a guardian may be appointed for a party or a child.  A guardian in this capacity is called a “guardian ad litem” and frequently referred to as a GAL.

Guardians are appointed for a party in a divorce case when that spouse is not mentally or physically capable of handling the matters related to the litigation.  For example, if a spouse suffers from schizophrenia or other serious psychological condition where their decision-making process is impaired, a guardian can be appointed.

It’s the guardian’s job to look out for the party’s legal interests and assist the attorney in prosecuting or defending the case. GAL’S for adults in domestic cases often have a very hard job.  They have to balance the duty to the party for whom he or she is guardian and listen to their stated wants and desires while using their best judgment about how to proceed forward in the divorce case.

It’s also a tricky situation for the attorney who thinks his or her client may need a guardian.  Frequently, however, there is a mental health professional who is making it clear that the client shouldn’t be or can’t make decisions for himself or herself.

Guardians for children have a similar role.  In family law cases, they are frequently appointed in cases where there are allegations of parental abuse or neglect that involve child protective services.  Children’s guardians are somewhat rare in Wake County in the “normal” child custody case where two parents simply disagree over scheduling and decision-making issues.

The guardian for a child in a case has the ability to report to the court how the child doing and be a voice for the child’s interest in the court process.  I have seen instances where the  GAL takes the witness stand and reports on how the child is doing in school, in therapy, and what the GAL wants for the custodial arrangement for the child.

Of course, whatever the GAL says in court, the final decision in a custody case is for the judge to make.  However, judges frequently give great weight to the statement of the guardian.

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Raleigh lawyer Scott Allen has litigated  cases involving guardians in custody, equitable distribution and alimony

If you have questions or need assistance call him at (919) 863-4183.  

Google

Temporary child support may be requested in a complaint, counterclaim or in a motion filed by a party.  It is not unusual to see a temporary child support request coupled with a request for past or retroactive child support.  The purpose of temporary child support is to get an amount of support in place pending final resolution of the case. Temporary child support is, in most cases, bases upon application os the North Carolina child support guidelines.   In some situations, the guidelines do not apply and the court will determine temporary child support based upon the incomes and expenses of the parties.  These are often presented in court in the form of financial affidavits.

The Wake County Local Rules have specific requirements to temporary child  support cases tried in Raleigh:

              6.3  Temporary Child Support Hearings. A hearing shall be set and a temporary child support order entered pursuant to N.C.G.S. § 50-32. Only upon the request of an attorney or party shall the assigned FCCC schedule a temporary child support hearing in accordance with these Rules.

1. (a)  Length of Hearing. Temporary child support hearings shall be limited to 1 hour. Each party will have up to thirty minutes to present his or her case, including direct and cross-examination, opening statements and closing arguments. With written notice to the opposing party at least seven (7) days prior to the scheduled hearing date, parties may request from the Court additional time, which the assigned Judge may allow in his or her discretion.
2. (b)  Use of Affidavits. Evidence in temporary child support hearings may be by affidavits. An affidavit is a sworn statement of fact, written down, signed, and witnessed by a taker of oaths such as a notary public. Parties wishing to use affirmative affidavits from the parties, accountants, private investigators or other third parties must deliver the affidavits (excluding attorney’s fee affidavits) to the other party by any means reasonably calculated to ensure receipt no later than ten (10) days prior to the scheduled hearing. Rebuttal affidavits, i.e., affidavits that are a direct response to the opposing party’s affirmative affidavits, shall be delivered to the other party by any means reasonably calculated to ensure receipt no later than five (5) days before the scheduled hearing. The Court will not consider affidavits which are not served on the opposing party in accordance with these Rules.
3. (c)  Temporary Order. The temporary child support order shall be non-prejudicial to both parties. In Guidelines cases, a completed Child Support Worksheet (AOC-CV-627, 628, or 629) shall be attached to the temporary order which is filed with the Clerk of Court.
4. (d)  Dismissal of Temporary Child Support Claim. If a party asserts a claim for temporary child support, he or she must schedule the claim for hearing so that it is heard within sixty (60) days of the filing of the claim. If the claim is not timely scheduled for hearing, the claim may be involuntarily dismissed without prejudice for failure to comply with these Rules.

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Raleigh divorce lawyerScott Allen handles child support, temporary child support and modification of child support in Wake County, North Carolina has over seventeen years of experience.  

If you have questions or need assistance call him at (919) 863-4183 or email at sallen@allenspence.com.  

The following list is not exhaustive, and the creative use of an affidavit can help almost any case.

Financial affidavit.  This is a statement of the affiant’s income and expenses.  They are frequently used in postseparation support, alimony, and child support hearings.  In theses hearings the court will examine the financial affidavit of each party and receive financial evidence to determines need and ability to pay postseparation support and alimony.   Financial affidavits are used sometimes in child support cases where there is a request to vary from the application of the North Carolina child support guidelines.

Equitable distribution inventory affidavit.   This is a statement by the affiant of his or her property and debts for purposes of an equitable distribution action.  This kind of  affidavit usually has a listing of what the party claims to be marital, divisible, and separate property and debt as well as date of separation and current values.

Affidavits of expert witnesses.  In some situations it is appropriate to ask an expert to prepare a sworn statement.  For example, in a postseparation support case where the payor will get a tax deduction and the recipient will have to pay taxes, one or both parties may hire an expert to give an opinion on the tax impact of different amounts of postseparation support.

Affidavits in child custody cases.  Many North Carolina judicial districts allow the use of sworn statement in temporary child custody cases.  Durham County is a good example of this.  Often these kinds of affidavits are prepared by non-party witnesses.  For example, it is frequent to see an affidavit from a child care provider.  Affidavits are not used in Wake County temporary child custody cases.

Affidavits in support of other motions.   There are many examples of other kinds of affidavits in North Carolina family law cases.  For example, the attorney fee affidavit, affidavit in support of a Rule 59 motion or in response to a Rule 59 motion.

Tips for writing an affidavit:

• The best affidavits are written by the person making the affidavit.  The affidavit is the testimony of the affiant, not the lawyer or someone else.
• It should be based on facts and observations of the affiant, not opinion.
• A letter is not the same thing as an affidavit.
• It should use plain language and be free from typographical and grammatical errors.
• An affidavit must be sworn to.

Raleigh Child Custody and Wake County Child Custody Evaluations

A child custody evaluation is a valuable tool in contested Raleigh child custody cases in North Carolina.  In this article I will explore some of the frequent questions I get about the custody evaluation over my years of practice in the Wake County family court in Raleigh, NC and other counties around North Carolina.

What is a child custody evaluation?  

Generally speaking, a child custody evaluation is a forensic examination of the children and parents by a qualified person.  The evaluation report will present the information gathered, an interpretation of the information, and make recommendations for the family.  The recommendations may include, for example, custodial schedule, suggestions about communication, and the need, if any, for individual and family counseling.

What is the purpose of the child custody evaluation in North Carolina courts?

As with any expert witness, the purpose of an expert is to assist the district court judge hearing the child custody case in making a fair and fully informed custody decision.  A child custody evaluation, no matter what the recommendations are, is not a replacement for the final judgment of the court.  The trial court may elect to use the recommendations; however, there is no requirement for the judge to do so.  The district court judge also has the choice to place little credibility in the evaluator’s opinion.

When can a child custody evaluation help?

I believe they can help in any Raleigh child custody or NC custody case that is being litigated because when the parents can’t agree and a judge must decide, the kind of information provided by the report almost always helps the court make a decision.

When can a child custody evaluation hurt?

On an individual basis, it would not be wise for a party who has psychological problems and parenting issues to request a child custody evaluation because these problems are likely to be highlighted in the experts’ report.  Of course, this sets up the tension between a parent’s individual desires for a particular custodial arrangement and what is truly in the best interest of the child.

A forensic child custody evaluation should be considered in any high-conflict case and in cases where there are suspicions of substance abuse, sexual abuse, or other similar factual situations.  The American Psychological Association has published guidelines that are useful.

What are the other downsides to a custody evaluation? 

They are expensive and they add several months to the custody litigation process.  In Raleigh child custody cases an expert may cost between $4,000 and $12,000.  the cost can vary by location because different experts frequently serve different areas of the sate.   There is a range that experts in the field charge and the number of children and complexity of the case all go into the wide range of possible costs.   The other obvious issue is how long the process takes.  The expert not only has to do interviews of the parents and children, but performs psychological testing, reviews of relevant documents, and interviews collateral witnesses.

How you respond is important, and I’ll get to that later on, but let me start by outlining some of the symptoms of stress that I have seen:

1. Inability to focus.
2. Sleep problems.
3. Anxiety.
4. Anger.
5. Depression.
6. Not eating.
7. Overeating.
8. Substance abuse.

Anxiety,  anger, and depression are, by far, the biggest symptoms I see in my practice.  From many conversations with other divorce lawyers, I know we all see the same thing.   These signs of stress are a daily part of my practice.   They are usual and to be expected as part of any divorce.

I know that life is stressful enough already.  When you add the divorce process on top of job issues and other family issues, it is easy to become overwhelmed.  However, it is important that stress be addressed before the symptoms have an impact on your case.

Symptoms of stress can impact a divorce case in many ways.  Here is a short list:

1. Inability to follow through with necessary documents and preparation.  A client that can’t focus can help in his or her own case.
2. Inability to appropriately communicate with the other party.  This is a big problem in custody cases.  A client who is stressed out and angry will often take the anger out on his or her spouse.

How to deal with this stress?  There are many ways.

1. Counseling.  In counseling the professional will suggest many ways to deal with stress.  For example, the counselor may help the patient put the divorce in perspective or frame the problem in a way that helps the spouse deal with it in a more productive way.  A qualified counselor may also give advice about avoiding stressful situations and recognizing other ways to deal with the stress of divorce.
2. Physical exercise.  I know that this can help the mind and body deal with stress.
3. Self-help.  There are books on how to deal with stress, web sites, and other resources.  Use them.

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Raleigh divorce lawyer Scott Allen handles alimony, child support, equitable distribution, modification of custody, child custody, and temporary custody hearings and has over seventeen years of experience.  

If you have questions or need assistance call him at (919) 863-4183 or email at sallen@allenspence.com.  

Reasons for emergency custody are varied, for example, an ex parte custody order may be entered if a child is abandoned.  Another example where an ex parte order is appropriate is if the child has been a victim of physical abuse by a parent.

Many parents think that emergency custody can be sought in every situation; however, that is not the case.  District court judges generally look very closely at applications for ex parte emergency custody and will refuse to enter an order unless the facts clearly rise to the level requiring the court to enter an order.

Judges look at ex parte applications for emergency custody and supporting affidavits closely because of the danger of abuse of the process when only one side gets to tell his or her story and because the relief that is being asked for usually involves a child being taken away from the other parent, frequently with the involvement of the police.

If an ex parte emergency custody order is entered there will be a return hearing where both sides should be prepared to present evidence to the court.  In this hearing the plaintiff (the parent seeking emergency custody) will be asking for an order to remain in place.  The defendant will be arguing and presenting evidence that there is no emergency.   Frequently courts will use the return hearing to fashion a temporary order in an effort to add stability for the children and to establish a framework for the parents’ interaction.

If you think your case has facts that justify a request for emergency custody, you should contact an attorney to assist you with evaluating the situation and get advice on how best to proceed.  If the facts do not support emergency custody, then it is always best not to file the emergency request and proceed with a custody request and set temporary child custody for hearing.

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Raleigh divorce lawyerScott Allen handles emergency custody claims, child custody, and temporary custody hearings and has over eighteen years of experience.  

If you have questions or need assistance call him at (919) 863-4183 or email at sallen@allenspence.com.  

The principle concepts of award alimony relate to which spouse is the supporting spouse, which spouse is dependent, and whether particular fault grounds  exist.

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Raleigh divorce lawyerScott Allen handles alimony and modification of alimony and has over seventeen years of experience.  

If you have questions or need assistance call him at (919) 863-4183 or email at sallen@allenspence.com.  

In 2011, the NC General Assembly amended Rule 45.  One of the amendments that is very important relates to obtaining discovery from outside the state of NC and imposes a very new process on parties wishing to obtain discovery from individuals outside of North Carolina.

Out-of-state witnesses can be important in alimony, custody, and equitable distribution cases and anywhere that an affidavit of the witness will not be accepted.

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Raleigh divorce lawyer Scott Allen handles modification of equitable distribution, alimony, divorce, custody, child custody, and temporary custody hearings and has over seventeen years of experience.  

If you have questions or need assistance call him at (919) 863-4183 or email at sallen@allenspence.com.  

Fault usually plays little to no role in the postseparation support hearing.  Frequently the postseparation support award is based primarily on financial affidavits that are filled out by the parties prior to the hearing.    In Wake County, North Carolina, postseparation support hearings are time-limited by the court.

§ 50‑16.2A.  Postseparation support.

(a)        In an action brought pursuant to Chapter 50 of the General Statutes, either party may move for postseparation support. The verified pleading, verified motion, or affidavit of the moving party shall set forth the factual basis for the relief requested.

(b)        In ordering postseparation support, the court shall base its award on the financial needs of the parties, considering the parties’ accustomed standard of living, the present employment income and other recurring earnings of each party from any source, their income‑earning abilities, the separate and marital debt service obligations, those expenses reasonably necessary to support each of the parties, and each party’s respective legal obligations to support any other persons.

(c)        Except when subsection (d) of this section applies, a dependent spouse is entitled to an award of postseparation support if, based on consideration of the factors specified in subsection (b) of this section, the court finds that the resources of the dependent spouse are not adequate to meet his or her reasonable needs and the supporting spouse has the ability to pay.

(d)       At a hearing on postseparation support, the judge shall consider marital misconduct by the dependent spouse occurring prior to or on the date of separation in deciding whether to award postseparation support and in deciding the amount of postseparation support. When the judge considers these acts by the dependent spouse, the judge shall also consider any marital misconduct by the supporting spouse in deciding whether to award postseparation support and in deciding the amount of postseparation support.

(e)        Nothing herein shall prevent a court from considering incidents of post date‑of‑separation marital misconduct as corroborating evidence supporting other evidence that marital misconduct occurred during the marriage and prior to date of separation. (1995, c. 319, s. 2.)

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Raleigh divorce lawyer Scott Allen handles postseparation support, alimony, and all other types of family law matters.  

If you have questions or need assistance call him at (919) 863-4183 or email at sallen@allenspence.com.  

§ 50‑13.12.  Forfeiture of licensing privileges for failure to pay child support or for failure to comply with subpoena issued pursuant to child support or paternity establishment proceedings.

(a)        As used in this section, the term:

(1)        “Licensing board” means a department, division, agency, officer, board, or other unit of state government that issues hunting, fishing, trapping, drivers, or occupational licenses or licensing privileges.

(2)        “Licensing privilege” means the privilege of an individual to be authorized to engage in an activity as evidenced by hunting, fishing, or trapping licenses, regular and commercial drivers licenses, and occupational, professional, and business licenses.

(3)        “Obligee” means the individual or agency to whom a duty of support is owed or the individual’s legal representative.

(4)        “Obligor” means the individual who owes a duty to make child support payments under a court order.

(5)        “Occupational license” means a license, certificate, permit, registration, or any other authorization issued by a licensing board that allows an obligor to engage in an occupation or profession.

(b)        Upon a finding by the district court judge that the obligor is willfully delinquent in child support payments equal to at least one month’s child support, or upon a finding that a person has willfully failed to comply with a subpoena issued pursuant to a child support or paternity establishment proceeding, and upon findings as to any specific licensing privileges held by the obligor or held by the person subject to the subpoena, the court may revoke some or all of such privileges until the obligor shall have paid the delinquent amount in full, or, as applicable, until the person subject to the subpoena has complied with the subpoena. The court may stay any such revocation pertaining to the obligor upon conditions requiring the obligor to make full payment of the delinquency over time. Any such stay shall further be conditioned upon the obligor’s maintenance of current child support. The court may stay the revocation pertaining to the person subject to the subpoena upon a finding that the person has complied with or is no longer subject to the subpoena. Upon an order revoking such privileges of an obligor that does not stay the revocation, the clerk of superior court shall notify the appropriate licensing board that the obligor is delinquent in child support payments and that the obligor’s licensing privileges are revoked until such time as the licensing board receives proof of certification by the clerk that the obligor is no longer delinquent in child support payments. Upon an order revoking such privileges of a person subject to the subpoena that does not stay the revocation, the clerk of superior court shall notify the appropriate licensing board that the person has failed to comply with the subpoena issued pursuant to a child support or paternity establishment proceeding and that the person’s licensing privileges are revoked until such time as the licensing board receives proof of certification by the clerk that the person is in compliance with or no longer subject to the subpoena.

(c)        An obligor may file a request with the clerk of superior court for certification that the obligor is no longer delinquent in child support payments upon submission of proof satisfactory to the clerk that the obligor has paid the delinquent amount in full. A person whose licensing privileges have been revoked under subsection (b) of this section because of a willful failure to comply with a subpoena may file a request with the clerk of superior court for certification that the person has met the requirements of or is no longer subject to the subpoena. The clerk shall provide a form to be used for a request for certification. If the clerk finds that the obligor has met the requirements for reinstatement under this subsection, then the clerk shall certify that the obligor is no longer delinquent and shall provide a copy of the certification to the obligor. Upon request of the obligor, the clerk shall mail a copy of the certification to the appropriate licensing board. If the clerk finds that the person whose licensing privileges have been revoked under subsection (b) of this section for failure to comply with a subpoena has complied with or is no longer subject to the subpoena, then the clerk shall certify that the person has met the requirements of or is no longer subject to the subpoena and shall provide a copy of the certification to the person. Upon request of the person, the clerk shall mail a copy of the certification to the appropriate licensing board.

(d)       If licensing privileges are revoked under this section, the obligor may petition the district court for a reinstatement of such privileges. The court may order the privileges reinstated conditioned upon full payment of the delinquency over time. Any order allowing license reinstatement shall additionally require the obligor’s maintenance of current child support. If the licensing privileges of a person other than the obligor are revoked under this section for failure to comply with a subpoena, the person may petition the district court for reinstatement of the privileges. The court may order the privileges reinstated if the person has complied with or is no longer subject to the subpoena that was the basis for revocation. Upon reinstatement under this subsection, the clerk of superior court shall certify that the obligor is no longer delinquent and provide a copy of the certification to the obligor. Upon request of the obligor, the clerk shall mail a copy of the certification to the appropriate licensing board. Upon reinstatement of the person whose licensing privileges were revoked based on failure to comply with a subpoena, the clerk of superior court shall certify that the person has complied with or is no longer subject to the subpoena. Upon request of the person whose licensing privileges are reinstated, the clerk shall mail a copy of the certification to the appropriate licensing board.

(e)        An obligor or other person whose licensing privileges are reinstated under this section may provide a copy of the certification set forth in either subsection (c) or (d) to each licensing agency to which the obligor or other person applies for reinstatement of licensing privileges. Upon request of the obligor or other person, the clerk shall mail a copy of the certification to the appropriate licensing board. Upon receipt of a copy of the certification, the licensing board shall reinstate the license.

(f)        Upon receipt of notification by the clerk that an obligor’s or other person’s licensing privileges are revoked pursuant to this section, the board shall note the revocation on its records and take all necessary steps to implement and enforce the revocation. These steps shall not include the board’s independent revocation process pursuant to Chapter 150B of the General Statutes, the Administrative Procedure Act, which process is replaced by the court process prescribed by this section. The revocation pertaining to an obligor shall remain in full force and effect until the board receives certification under this section that the obligor is no longer delinquent in child support payments. The revocation pertaining to the person whose licensing privileges were revoked on the basis of failure to comply with a subpoena shall remain in full force and effect until the board receives certification of reinstatement under subsection (d) of this section. (1995, c. 538, ss. 1, 1.1; 1997‑433, s. 5.3; 1998‑17, s. 1.)

 

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Raleigh divorce lawyer Scott Allen handles modification of child support, custody, child custody, and temporary custody hearings and has over seventeen years of experience.  

If you have questions or need assistance call him at (919) 863-4183 or email at sallen@allenspence.com.  

North Carolina law allows the district court judge in a child support case to order health insurance coverage when  ”health insurance is available at a reasonable cost.”  The court may also require  parent to maintain dental insurance coverage for a child.

The statute provides:

§ 50‑13.11.  Orders and agreements regarding medical support and health insurance coverage for minor children.

(a)        The court may order a parent of a minor child or other responsible party to provide medical support for the child, or the parties may enter into a written agreement regarding medical support for the child. An order or agreement for medical support for the child may require one or both parties to pay the medical, hospital, dental, or other health care related expenses.

(a1)      The court shall order the parent of a minor child or other responsible party to maintain health insurance for the benefit of the child when health insurance is available at a reasonable cost. If health insurance is not presently available at a reasonable cost, the court shall order the parent of a minor child or other responsible party to maintain health insurance for the benefit of the child when health insurance becomes available at a reasonable cost. As used in this subsection, health insurance is considered reasonable in cost if it is employment related or other group health insurance, regardless of service delivery mechanism. The court may require one or both parties to maintain dental insurance.

(b)        The party ordered or under agreement to provide health insurance shall provide written notice of any change in the applicable insurance coverage to the other party.

(c)        The employer or insurer of the party required to provide health, hospital, and dental insurance shall release to the other party, upon written request, any information on a minor child’s insurance coverage that the employer or insurer may release to the party required to provide health, hospital, and dental insurance.

(d)       When a court order or agreement for health insurance is in effect, the signature of either party shall be valid authorization to the insurer to process an insurance claim on behalf of a minor child.

(e)        If the party who is required to provide health insurance fails to maintain the insurance coverage for the minor child, the party shall be liable for any health, hospital, or dental expenses incurred from the date of the court order or agreement that would have been covered by insurance if it had been in force.

(f)        When a noncustodial parent ordered to provide health insurance changes employment and health insurance coverage is available through the new employer, the obligee shall notify the new employer of the noncustodial parent’s obligation to provide health insurance for the child. Upon receipt of notice from the obligee, the new employer shall enroll the child in the employer’s health insurance plan.

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Raleigh divorce lawyer Scott Allen handles child support has over seventeen years of experience.  

If you have questions or need assistance call him at (919) 863-4183 or email at sallen@allenspence.com.  

In practical terms that means that as soon as events change that cause a peson to consider a motion to modify child support the motion should be filed.  For example, if a payor of child support loses his job, it is in his best interest to immediately file for child support rather than wait because the court may modify the child support back to the time of  the filing of the motion but not before.

The North Carolina statute is found in § 50‑13.10.

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Raleigh divorce lawyerScott Allen handles child support, modification of custody, child custody, and temporary custody hearings and has over seventeen years of experience.  

If you have questions or need assistance call him at (919) 863-4183 or email at sallen@allenspence.com.  

(a)        Upon its own motion or upon motion of either party, the court may order at any time that support payments be made to the State Child Support Collection and Disbursement Unit for remittance to the party entitled to receive the payments. For child support orders initially entered on or after January 1, 1994, the immediate income withholding provisions of G.S. 110‑136.5(c1) apply.

(b)        After entry of an order by the court under subsection (a) of this section, the State Child Support Collection and Disbursement Unit shall transmit child support payments that are made to it to the custodial parent or other party entitled to receive them, unless a court order requires otherwise.

(b1)      In a IV‑D case:

(1)        The designated child support enforcement agency shall have the sole responsibility and authority for monitoring the obligor’s compliance with all child support orders in the case and for initiating any enforcement procedures that it considers appropriate.

(2)        The clerk of court shall maintain all official records in the case.

(3)        The designated child support enforcement agency shall maintain any other records needed to monitor the obligor’s compliance with or to enforce the child support orders in the case, including records showing the amount of each payment of child support received from or on behalf of the obligor, along with the dates on which each payment was received. In any action establishing, enforcing, or modifying a child support order, the payment records maintained by the designated child support agency shall be admissible evidence, and the court shall permit the designated representative to authenticate those records.

(b2)      In a non‑IV‑D case:

(1)        Repealed by Session Laws 2005, ch. 389, s. 1.

(2)        The clerk of court shall maintain all official records and all case data concerning child support matters previously enforced by the clerk of court.

(3)        Repealed by Session Laws 2005, ch. 389, s. 1.

(c)        In a IV‑D case, the parties affected by the order shall inform the designated child support enforcement agency of any change of address or other condition that may affect the administration of the order. The court may provide in the order that a party failing to inform the court or, as appropriate, the designated child support enforcement agency, of a change of address within a reasonable period of time may be held in civil contempt.

(d)       Upon affidavit of an obligee, the clerk or a district court judge may order the obligor to appear and show cause why the obligor should not be subjected to income withholding or adjudged in contempt of court, or both. The order shall require the obligor to appear and show cause why the obligor should not be subjected to income withholding or adjudged in contempt of court, or both, and shall order the obligor to bring to the hearing records and information relating to the obligor’s employment, the obligor’s licensing privileges, and the amount and sources of the obligor’s disposable income. The order shall state:

(1)        That the obligor is under a court order to provide child support, the name of each child for whose benefit support is due, and information sufficient to identify the order;

(2)        That the obligor is delinquent and the amount of overdue support;

(2a)      That the court may order the revocation of some or all of the obligor’s licensing privileges if the obligor is delinquent in an amount equal to the support due for one month;

(3)        That the court may order income withholding if the obligor is delinquent in an amount equal to the support due for one month;

(4)        That income withholding, if implemented, will apply to the obligor’s current payors and all subsequent payors and will be continued until terminated pursuant to G.S. 110‑136.10;

(5)        That failure to bring to the hearing records and information relating to his employment and the amount and sources of his disposable income will be grounds for contempt;

(6)        That if income withholding is not an available or appropriate remedy, the court may determine whether the obligor is in contempt or whether any other enforcement remedy is appropriate.

The order may be signed by the clerk or a district court judge, and shall be served on the obligor pursuant to G.S. 1A‑1, Rule 4, Rules of Civil Procedure. On motion of the person to whom support is owed in a non‑IV‑D case, with the approval of the district court judge, if the district court judge finds it is in the best interest of the child, no order shall be issued.

(e)        Repealed by Session Laws 2005, ch. 389, s. 1.

(f)        Repealed by Session Laws 2005, ch. 389, s. 1.

(g)        Nothing in this section shall preclude the independent initiation by a party of proceedings for civil contempt or for income withholding. ( 1983, c. 677, s. 1; 1985 (Reg. Sess., 1986), c. 949, ss. 3‑6; 1989, c. 479; 1993, c. 517, s. 6; c. 553, s. 67.1; 1995, c. 444, s. 1; c. 538, s. 1.2; 1997‑443, s. 11A.118(a); 1999‑293, ss. 11‑14; 2001‑237, s. 7; 2005‑389, s. 1; 2006‑264, s. 97.)

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Raleigh divorce lawyer Scott Allen handles child support, modification of custody, child custody, and temporary custody hearings and has over seventeen years of experience.  

If you have questions or need assistance call him at (919) 863-4183 or email at sallen@allenspence.com.  

The statute provides:

§ 50‑13.7.  Modification of order for child support or custody.

(a)        Except as otherwise provided in G.S. 50‑13.7A, an order of a court of this State for support of a minor child may be modified or vacated at any time, upon motion in the cause and a showing of changed circumstances by either party or anyone interested subject to the limitations of G.S. 50‑13.10. Subject to the provisions of G.S. 50A‑201, 50A‑202, and 50A‑204, an order of a court of this State for custody of a minor child may be modified or vacated at any time, upon motion in the cause and a showing of changed circumstances by either party or anyone interested.

(b)        When an order for support of a minor child has been entered by a court of another state, a court of this State may, upon gaining jurisdiction, and upon a showing of changed circumstances, enter a new order for support which modifies or supersedes such order for support, subject to the limitations of G.S. 50‑13.10. Subject to the provisions of G.S. 50A‑201, 50A‑202, and 50A‑204, when an order for custody of a minor child has been entered by a court of another state, a court of this State may, upon gaining jurisdiction, and a showing of changed circumstances, enter a new order for custody which modifies or supersedes such order for custody. (1858‑9, c. 53; 1868‑9, c. 116, s. 36; 1871‑2, c. 193, s. 46; Code, ss. 1296, 1570, 1661; Rev., ss. 1570, 1853; C.S., ss. 1664, 2241; 1929, c. 270, s. 1; 1939, c. 115; 1941, c. 120; 1943, c. 194; 1949, c. 1010; 1953, c. 813; 1957, c. 545; 1965, c. 310, s. 2; 1967, c. 1153, s. 2; 1979, c. 110, s. 13; 1981, c. 682, s. 12; 1987, c. 739, s. 3; 1999‑223, s. 13; 2007‑175, s. 1.)

 

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Raleigh divorce lawyer Scott Allen handles modification of custody, child support, child custody, and temporary custody hearings and has over seventeen years of experience.  

If you have questions or need assistance call him at (919) 863-4183 or email at sallen@allenspence.com.  

The district court judge has much discretion in deciding whether to award attorneys’ fees and how much to award.  Different judges have different views of how much to award in fees.

____________________

Raleigh divorce lawyer Scott Allen handles modification of custody, child custody, child support and temporary custody hearings and has over seventeen years of experience.  

If you have questions or need assistance call him at (919) 863-4183 or email at sallen@allenspence.com.  

The basis or elements of a claim for alienation of affections are:

• There is a marriage,
• With some love and affection, and
• A third party takes willful and malicious acts and damages the love and affection.

These acts have to occur prior to the parties date of separation and as you can see, do not have an element of sexual relations.

Criminal conversation (adultery) is a tort brought by the injured spouse in NC against the person who had sexual relations with his or her spouse.  Criminal conversation may be proven in court by witnesses, admissions of the parties, or evidence of opportunity and inclination related to the relationship.

Alienation of affections and criminal conversation cases are usually brought in superior court in NC but in some circumstances they are brought in district court.  When these cases are brought in District Court the defending party frequently seeks to remove the case to superior court.  Either party in one of these cases has an absolute right to a jury trial.

The litigation of these kinds of cases may take several months to several years depending on the complexity of the facts, number of witnesses, and other related issues.

A plaintiff in these kinds of cases will usually seek compensatory and punitive damages.

Compensatory damages are to compensate the plaintiff for the value of the loss of the services and relationship with his or her spouse and to repay damages caused by the defendant (such as when  a plaintiff suffers medical expenses).

Punitive damages are to punish the defendant for his or her conduct.

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Raleigh lawyer Scott Allen handles alienation of affections and criminal conversation cases and has over seventeen years of experience.  

If you have questions or need assistance call him at (919) 863-4183 or email at sallen@allenspence.com.  

§ 50‑13.5.  Procedure in actions for custody or support of minor children.

(a)        Procedure. – The procedure in actions for custody and support of minor children shall be as in civil actions, except as provided in this section and in G.S. 50‑19. In this G.S. 50‑13.5 the words “custody and support” shall be deemed to include custody or support, or both.

(b)        Type of Action. – An action brought under the provisions of this section may be maintained as follows:

(1)        As a civil action.

(2)        Repealed by Session Laws 1979, c. 110, s. 12.

(3)        Joined with an action for annulment, or an action for divorce, either absolute or from bed and board, or an action for alimony without divorce.

(4)        As a cross action in an action for annulment, or an action for divorce, either absolute or from bed and board, or an action for alimony without divorce.

(5)        By motion in the cause in an action for annulment, or an action for divorce, either absolute or from bed and board, or an action for alimony without divorce.

(6)        Upon the court’s own motion in an action for annulment, or an action for divorce, either absolute or from bed and board, or an action for alimony without divorce.

(7)        In any of the foregoing the judge may issue an order requiring that the body of the minor child be brought before him.

(c)        Jurisdiction in Actions or Proceedings for Child Support and Child Custody. –

(1)        The jurisdiction of the courts of this State to enter orders providing for the support of a minor child shall be as in actions or proceedings for the payment of money or the transfer of property.

(2)        The courts of this State shall have jurisdiction to enter orders providing for the custody of a minor child under the provisions of G.S. 50A‑201, 50A‑202, and 50A‑204.

(3)        through (6) Repealed by Session Laws 1979, c. 110, s. 12.

(d)       Service of Process; Notice; Interlocutory Orders. –

(1)        Service of process in civil actions for the custody of minor children shall be as in other civil actions. Motions for support of a minor child in a pending action may be made on 10 days notice to the other parties and compliance with G.S. 50‑13.5(e). Motions for custody of a minor child in a pending action may be made on 10 days notice to the other parties and after compliance with G.S. 50A‑205.

(2)        If the circumstances of the case render it appropriate, upon gaining jurisdiction of the minor child the court may enter orders for the temporary custody and support of the child, pending the service of process or notice as herein provided.

(3)        A temporary order for custody which changes the living arrangements of a child or changes custody shall not be entered ex parte and prior to service of process or notice, unless the court finds that the child is exposed to a substantial risk of bodily injury or sexual abuse or that there is a substantial risk that the child may be abducted or removed from the State of North Carolina for the purpose of evading the jurisdiction of North Carolina courts.

(e)        Notice to Additional Persons in Support Actions and Proceedings; Intervention. –

(1)        The parents of the minor child whose addresses are reasonably ascertainable; any person, agency, organization or institution having actual care, control, or custody of a minor child; and any person, agency, organization or institution required by court order to provide for the support of a minor child, either in whole or in part, not named as parties and served with process in an action or proceeding for the support of such child, shall be given notice by the party raising the issue of support.

(2)        The notice herein required shall be in the manner provided by the Rules of Civil Procedure for the service of notices in actions. Such notice shall advise the person to be notified of the name of the child, the names of the parties to the action or proceeding, the court in which the action or proceeding was instituted, and the date thereof.

(3)        In the discretion of the court, failure of such service of notice shall not affect the validity of any order or judgment entered in such action or proceeding.

(4)        Any person required to be given notice as herein provided may intervene in an action or proceeding for support of a minor child by filing in apt time notice of appearance or other appropriate pleadings.

(f)        Venue. – An action or proceeding in the courts of this State for custody and support of a minor child may be maintained in the county where the child resides or is physically present or in a county where a parent resides, except as hereinafter provided. If an action for annulment, for divorce, either absolute or from bed and board, or for alimony without divorce has been previously instituted in this State, until there has been a final judgment in such case, any action or proceeding for custody and support of the minor children of the marriage shall be joined with such action or be by motion in the cause in such action. If an action or proceeding for the custody and support of a minor child has been instituted and an action for annulment or for divorce, either absolute or from bed and board, or for alimony without divorce is subsequently instituted in the same or another county, the court having jurisdiction of the prior action or proceeding may, in its discretion direct that the action or proceeding for custody and support of a minor child be consolidated with such subsequent action, and in the event consolidation is ordered, shall determine in which court such consolidated action or proceeding shall be heard.

(g)        Custody and Support Irrespective of Parents’ Rights Inter Partes. – Orders for custody and support of minor children may be entered when the matter is before the court as provided by this section, irrespective of the rights of the wife and the husband as between themselves in an action for annulment or an action for divorce, either absolute or from bed and board, or an action for alimony without divorce.

(h)        Court Having Jurisdiction. – When a district court having jurisdiction of the matter shall have been established, actions or proceedings for custody and support of minor children shall be heard without a jury by the judge of such district court, and may be heard at any time.

(i)         District Court; Denial of Parental Visitation Right; Written Finding of Fact. – In any case in which an award of child custody is made in a district court, the trial judge, prior to denying a parent the right of reasonable visitation, shall make a written finding of fact that the parent being denied visitation rights is an unfit person to visit the child or that such visitation rights are not in the best interest of the child.

(j)         Custody and Visitation Rights of Grandparents. – In any action in which the custody of a minor child has been determined, upon a motion in the cause and a showing of changed circumstances pursuant to G.S. 50‑13.7, the grandparents of the child are entitled to such custody or visitation rights as the court, in its discretion, deems appropriate. As used in this subsection, “grandparent” includes a biological grandparent of a child adopted by a stepparent or a relative of the child where a substantial relationship exists between the grandparent and the child. Under no circumstances shall a biological grandparent of a child adopted by adoptive parents, neither of whom is related to the child and where parental rights of both biological parents have been terminated, be entitled to visitation rights.(1858‑9, c. 53, s. 2; 1871‑2, c. 193, ss. 39, 46; Code, ss. 1292, 1296, 1570, 1662; Rev., ss. 1567, 1570, 1854; 1919, c. 24; C.S., ss. 1664, 1667, 2242; 1921, c. 13; 1923, c. 52; 1939, c. 115; 1941, c. 120; 1943, c. 194; 1949, c. 1010; 1951, c. 893, s. 3; 1953, cc. 813, 925; 1955, cc. 814, 1189; 1957, c. 545; 1965, c. 310, s. 2; 1967, c. 1153, s. 2; 1971, c. 1185, s. 24; 1973, c. 751; 1979, c. 110, s. 12; c. 563; c. 709, s. 3; 1981, c. 735, s. 3; 1983, c. 587; 1985, c. 575, s. 4; 1987 (Reg. Sess., 1988), c. 893, s. 3.1; 1999‑223, ss. 11, 12.)

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Raleigh divorce attorney Scott Allen handles child support, modification of custody, child custody, and temporary custody hearings and has over seventeen years of experience.  

If you have questions or need assistance call him at (919) 863-4183 or email at sallen@allenspence.com.  

(a)        Any parent, or any person, agency, organization or institution having custody of a minor child, or bringing an action or proceeding for the custody of such child, or a minor child by his guardian may institute an action for the support of such child as hereinafter provided.

(b)        In the absence of pleading and proof that the circumstances otherwise warrant, the father and mother shall be primarily liable for the support of a minor child. In the absence of pleading and proof that the circumstances otherwise warrant, parents of a minor, unemancipated child who is the custodial or noncustodial parent of a child shall share this primary liability for their grandchild’s support with the minor parent, the court determining the proper share, until the minor parent reaches the age of 18 or becomes emancipated. If both the parents of the child requiring support were unemancipated minors at the time of the child’s conception, the parents of both minor parents share primary liability for their grandchild’s support until both minor parents reach the age of 18 or become emancipated. If only one parent of the child requiring support was an unemancipated minor at the time of the child’s conception, the parents of both parents are liable for any arrearages in child support owed by the adult or emancipated parent until the other parent reaches the age of 18 or becomes emancipated. In the absence of pleading and proof that the circumstances otherwise warrant, any other person, agency, organization or institution standing in loco parentis shall be secondarily liable for such support. Such other circumstances may include, but shall not be limited to, the relative ability of all the above‑mentioned parties to provide support or the inability of one or more of them to provide support, and the needs and estate of the child. The judge may enter an order requiring any one or more of the above‑mentioned parties to provide for the support of the child as may be appropriate in the particular case, and if appropriate the court may authorize the application of any separate estate of the child to his support. However, the judge may not order support to be paid by a person who is not the child’s parent or an agency, organization or institution standing in loco parentis absent evidence and a finding that such person, agency, organization or institution has voluntarily assumed the obligation of support in writing. The preceding sentence shall not be construed to prevent any court from ordering the support of a child by an agency of the State or county which agency may be responsible under law for such support.

The judge may order responsible parents in a IV‑D establishment case to perform a job search, if the responsible parent is not incapacitated. This includes IV‑D cases in which the responsible parent is a noncustodial mother or a noncustodial father whose affidavit of parentage has been filed with the court or when paternity is not at issue for the child. The court may further order the responsible parent to participate in work activities, as defined in 42 U.S.C. § 607, as the court deems appropriate.

(c)        Payments ordered for the support of a minor child shall be in such amount as to meet the reasonable needs of the child for health, education, and maintenance, having due regard to the estates, earnings, conditions, accustomed standard of living of the child and the parties, the child care and homemaker contributions of each party, and other facts of the particular case. Payments ordered for the support of a minor child shall be on a monthly basis, due and payable on the first day of each month. The requirement that orders be established on a monthly basis does not affect the availability of garnishment of disposable earnings based on an obligor’s pay period.

The court shall determine the amount of child support payments by applying the presumptive guidelines established pursuant to subsection (c1) of this section. However, upon request of any party, the Court shall hear evidence, and from the evidence, find the facts relating to the reasonable needs of the child for support and the relative ability of each parent to provide support. If, after considering the evidence, the Court finds by the greater weight of the evidence that the application of the guidelines would not meet or would exceed the reasonable needs of the child considering the relative ability of each parent to provide support or would be otherwise unjust or inappropriate the Court may vary from the guidelines. If the court orders an amount other than the amount determined by application of the presumptive guidelines, the court shall make findings of fact as to the criteria that justify varying from the guidelines and the basis for the amount ordered.

Payments ordered for the support of a child shall terminate when the child reaches the age of 18 except:

(1)        If the child is otherwise emancipated, payments shall terminate at that time;

(2)        If the child is still in primary or secondary school when the child reaches age 18, support payments shall continue until the child graduates, otherwise ceases to attend school on a regular basis, fails to make satisfactory academic progress towards graduation, or reaches age 20, whichever comes first, unless the court in its discretion orders that payments cease at age 18 or prior to high school graduation.

In the case of graduation, or attaining age 20, payments shall terminate without order by the court, subject to the right of the party receiving support to show, upon motion and with notice to the opposing party, that the child has not graduated or attained the age of 20.

If an arrearage for child support or fees due exists at the time that a child support obligation terminates, payments shall continue in the same total amount that was due under the terms of the previous court order or income withholding in effect at the time of the support obligation. The total amount of these payments is to be applied to the arrearage until all arrearages and fees are satisfied or until further order of the court.

(c1)      Effective July 1, 1990, the Conference of Chief District Judges shall prescribe uniform statewide presumptive guidelines for the computation of child support obligations of each parent as provided in Chapter 50 or elsewhere in the General Statutes and shall develop criteria for determining when, in a particular case, application of the guidelines would be unjust or inappropriate. Prior to May 1, 1990 these guidelines and criteria shall be reported to the General Assembly by the Administrative Office of the Courts by delivering copies to the President Pro Tempore of the Senate and the Speaker of the House of Representatives. The purpose of the guidelines and criteria shall be to ensure that payments ordered for the support of a minor child are in such amount as to meet the reasonable needs of the child for health, education, and maintenance, having due regard to the estates, earnings, conditions, accustomed standard of living of the child and the parties, the child care and homemaker contributions of each party, and other facts of the particular case. The guidelines shall include a procedure for setting child support, if any, in a joint or shared custody arrangement which shall reflect the other statutory requirements herein.

Periodically, but at least once every four years, the Conference of Chief District Judges shall review the guidelines to determine whether their application results in appropriate child support award amounts. The Conference may modify the guidelines accordingly. The Conference shall give the Department of Health and Human Services, the Administrative Office of the Courts, and the general public an opportunity to provide the Conference with information relevant to the development and review of the guidelines. Any modifications of the guidelines or criteria shall be reported to the General Assembly by the Administrative Office of the Courts before they become effective by delivering copies to the President Pro Tempore of the Senate and the Speaker of the House of Representatives. The guidelines, when adopted or modified, shall be provided to the Department of Health and Human Services and the Administrative Office of the Courts, which shall disseminate them to the public through local IV‑D offices, clerks of court, and the media.

Until July 1, 1990, the advisory guidelines adopted by the Conference of Chief District Judges pursuant to this subsection as formerly written shall operate as presumptive guidelines and the factors adopted by the Conference of Chief District Judges pursuant to this subsection as formerly written shall constitute criteria for varying from the amount of support determined by the guidelines.

(d)       In non‑IV‑D cases, payments for the support of a minor child shall be ordered to be paid to the person having custody of the child or any other proper person, agency, organization or institution, or to the State Child Support Collection and Disbursement Unit, for the benefit of the child. In IV‑D cases, payments for the support of a minor child shall be ordered to be paid to the State Child Support Collection and Disbursement Unit for the benefit of the child.

(d1)     For child support orders initially entered on or after January 1, 1994, the immediate income withholding provisions of G.S. 110‑136.5(c1) shall apply.

(e)        Payment for the support of a minor child shall be paid by lump sum payment, periodic payments, or by transfer of title or possession of personal property of any interest therein, or a security interest in or possession of real property, as the court may order. The court may order the transfer of title to real property solely owned by the obligor in payment of arrearages of child support so long as the net value of the interest in the property being transferred does not exceed the amount of the arrearage being satisfied. In every case in which payment for the support of a minor child is ordered and alimony or postseparation support is also ordered, the order shall separately state and identify each allowance.

(e1)      In IV‑D cases, the order for child support shall provide that the clerk shall transfer the case to another jurisdiction in this State if the IV‑D agency requests the transfer on the basis that the obligor, the custodian of the child, and the child do not reside in the jurisdiction in which the order was issued. The IV‑D agency shall provide notice of the transfer to the obligor by delivery of written notice in accordance with the notice requirements of Chapter 1A‑1, Rule 5(b) of the Rules of Civil Procedure. The clerk shall transfer the case to the jurisdiction requested by the IV‑D agency, which shall be a jurisdiction in which the obligor, the custodian of the child, or the child resides. Nothing in this subsection shall be construed to prevent a party from contesting the transfer.

(f)        Remedies for enforcement of support of minor children shall be available as herein provided.

(1)        The court may require the person ordered to make payments for the support of a minor child to secure the same by means of a bond, mortgage or deed of trust, or any other means ordinarily used to secure an obligation to pay money or transfer property, or by requiring the execution of an assignment of wages, salary or other income due or to become due.

(2)        If the court requires the transfer of real or personal property or an interest therein as provided in subsection (e) as a part of an order for payment of support for a minor child, or for the securing thereof, the court may also enter an order which shall transfer title as provided in G.S. 1A‑1, Rule 70 and G.S. 1‑228.

(3)        The remedy of arrest and bail, as provided in Article 34 of Chapter 1 of the General Statutes, shall be available in actions for child‑support payments as in other cases.

(4)        The remedies of attachment and garnishment, as provided in Article 35 of Chapter 1 of the General Statutes, shall be available in an action for child‑support payments as in other cases, and for such purposes the child or person bringing an action for child support shall be deemed a creditor of the defendant. Additionally, in accordance with the provisions of G.S. 110‑136, a continuing wage garnishment proceeding for wages due or to become due may be instituted by motion in the original child support proceeding or by independent action through the filing of a petition.

(5)        The remedy of injunction, as provided in Article 37 of Chapter 1 of the General Statutes and G.S. 1A‑1, Rule 65, shall be available in actions for child support as in other cases.

(6)        Receivers, as provided in Article 38 of Chapter 1 of the General Statutes, may be appointed in action for child support as in other cases.

(7)        A minor child or other person for whose benefit an order for the payment of child support has been entered shall be a creditor within the meaning of Article 3A of Chapter 39 of the General Statutes pertaining to fraudulent conveyances.

(8)        Except as provided in Article 15 of Chapter 44 of the General Statutes, a judgment for child support shall not be a lien against real property unless the judgment expressly so provides, sets out the amount of the lien in a sum certain, and adequately describes the real property affected; but past due periodic payments may by motion in the cause or by a separate action be reduced to judgment which shall be a lien as other judgments and may include provisions for periodic payments.

(9)        An order for the periodic payments of child support or a child support judgment that provides for periodic payments is enforceable by proceedings for civil contempt, and disobedience may be punished by proceedings for criminal contempt, as provided in Chapter 5A of the General Statutes.

Notwithstanding the provisions of G.S. 1‑294, an order for the payment of child support which has been appealed to the appellate division is enforceable in the trial court by proceedings for civil contempt during the pendency of the appeal. Upon motion of an aggrieved party, the court of the appellate division in which the appeal is pending may stay any order for civil contempt entered for child support until the appeal is decided, if justice requires.

(10)      The remedies provided by Chapter 1 of the General Statutes, Article 28, Execution; Article 29B, Execution Sales; and Article 31, Supplemental Proceedings, shall be available for the enforcement of judgments for child support as in other cases, but amounts so payable shall not constitute a debt as to which property is exempt from execution as provided in Article 16 of Chapter 1C of the General Statutes.

(11)      The specific enumeration of remedies in this section shall not constitute a bar to remedies otherwise available.

(g)        An individual who brings an action or motion in the cause for the support of a minor child, and the individual who defends the action, shall provide to the clerk of the court in which the action is brought or the order is issued, the individual’s social security number.

(h)        Child support orders initially entered or modified on and after October 1, 1998, shall contain the name of each of the parties, the date of birth of each party, and the court docket number. The Administrative Office of the Courts shall transmit to the Department of Health and Human Services, Child Support Enforcement Program, on a timely basis, the information required to be included on orders under this subsection and the social security number of each party as required under subsection (g) of this section.  (1967, c. 1153, s. 2; 1969, c. 895, s. 17; 1975, c. 814; 1977, c. 711, s. 26; 1979, c. 386, s. 10; 1981, c. 472; c. 613, ss. 1, 3; 1983, c. 54; c. 530, s. 1; 1985, c. 689, s. 17; 1985 (Reg. Sess., 1986), c. 1016; 1989, c. 529, ss. 1, 2; 1989 (Reg. Sess., 1990), c. 1067, s. 2; 1993, c. 335, s. 1; c. 517, s. 5; 1995, c. 319, s. 9; c. 518, s. 1; 1997‑433, ss. 2.1(a), 2.2, 4.4, 7.1; 1997‑443, ss. 11A.118(a), 11A.122; 1998‑17, s. 1; 1998‑176, s. 1; 1999‑293, ss. 3, 4; 1999‑456, s. 13; 2001‑237, s. 1; 2003‑288, s. 1; 2008‑12, s. 1.)

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Raleigh divorce attorney  Scott Allen handles child support, modification of child support, custody, child custody, and temporary custody hearings and has over seventeen years of experience.  

If you have questions or need assistance call him at (919) 863-4183 or email at sallen@allenspence.com.  

Child Custody Orders and Enforcement

I get lots of calls and questions about what happens when a parent violates the terms of a child custody order in North Carolina.  There is no automatic punishment in such a situation.  This is a surprise to many people.  Furthermore, law enforcement can not simply go and arrest somone because you accuse them of violating a court order.  One party has to go to court and ask a judge to hold the offending party in contempt of court.

The relevant NC statute is NCGS § 50‑13.3.  Enforcement of order for custody.  It provides:

(a)        An order providing for the custody of a minor child is  enforceable by proceedings for civil contempt, and its disobedience may be punished by proceedings for criminal contempt, as provided in Chapter 5A, Contempt, of the General Statutes.

Notwithstanding the provisions of G.S. 1‑294, an order pertaining to child custody which has been appealed to the appellate division is  enforceable in the trial court by proceedings for civil contempt during the pendency of the appeal. Upon motion of an aggrieved party, the court of the appellate division in which the appeal is pending may stay any order for civil contempt entered for child custody until the appeal is decided, if justice requires.

(b)        Any court of this State having jurisdiction to make an award of custody of a minor child in an action or proceeding therefor, shall have the power of injunction in such action or proceeding as provided  in Article 37 of Chapter 1 of the General Statutes and G.S. 1A‑1, Rule 65.

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Raleigh divorce lawyer Scott Allen handles modification of custody, child custody, and temporary custody hearings and has over seventeen years of experience.  

If you have questions or need assistance call him at (919) 863-4183 or email at sallen@allenspence.com.  

____________________

Raleigh divorce lawyer Scott Allen handles modification of custody, child custody, and temporary custody hearings and has over seventeen years of experience.  

If you have questions or need assistance call him at (919) 863-4183 or email at sallen@allenspence.com.