You are here: Home / Archives for law

NC Rule 45(f) and the Out-of-State Witness

Rule of Civil Procedure 45 is where you will find the rules related to subpoenas in North Carolina.

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.

 

____________________

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.  

Filed Under: Discovery and Depositions, Family Law Library Tagged With: , , , , , , , , , , , , , , , , ,

Postseparation Support in North Carolina

postseparation support Postseparation support is a ration of the 1995 statutory amendments that overhauled the alimony and temporary alimony law in North Carolina.  Postseparation support is temporary alimony.   It is designed as a stop-gap measure to help dependent spouses get support after separation and until final alimony is awarded or denied.

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.)

____________________

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.  

Filed Under: Alimony, Family Law Library Tagged With: , , , , , , , , , , , , , , , , , , , ,

Child Custody and How Do I Enforce My Child Custody Order?

Raleigh Child Custody

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.

____________________

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.  

Filed Under: Child Custody Tagged With: , , , , , , , , , , , , , , , , , , , , , ,

Financial Mediation in Wake County – The Basics

Wake County has a family court system and local rules that are designed to streamline the court process.  Financial mediation is a requirement in Wake County family law cases where equitable distribution, postseparation support, and alimony are at issue.

Family financial mediation is presided over by a mediator.  A mediator is a neutral person who is there to assist the parties in reaching a settlement of their disputes.

Prior to the mediation, the mediator will have each party sign a mediation agreement that sets out the details of the mediation and how the mediator’s fee will be paid. The mediator’s fee is usually divided equally between the parties and is due at the end of the mediation.

The mediator may not be called as a witness in the case and is boung by rules of strict confidentiality.  Also, offers made back and forth at mediation cannot be used against a party in court.  For example, let’s say you agreed to accept $100,000 to settle equitable distribution at the mediation.  If it does not settle, the other party can’t go into court and say that you agreed to accept that amount.

Generally, the parties are in separate rooms with their lawyers.   The mediator will go back and forth throughout the day carrying offers and counteroffers between the parties.

If the mediation is successful, the parties usually sign a settlement document at the end of the mediation.  The reason a document is signed at mediation is to insure that a deal has been reached and people won’t change their minds later on.

Mediation is a way for the parties to settle their conflict outside of a courtroom.  It can save money and time.  Mediation is also less emotionally taxing than going to court.

____________________

Raleigh lawyer Scott Allen is a mediator and also represents clients in equitable distribution, postseparation support, and alimony cases.

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


		

		
Filed Under: Alimony, Property Distribution  Tagged With: , , , , , , , , , , , , , ,  

	

		


				
Taxes and Your Divorce – Alimony
 
		
				

			
As the year draws to a close one issue that many separated and divorcing couples have not considered is the impact of the tax laws on their divorce.  Taxes absorb a significant amount of income and impact cash flow and wealth.  If you are paying or receiving alimony there are important rules about how they impact your taxes.


Amounts of spousal suport paid under divorce or alimony order or written separation agreements entered into between you and your spouse or former spouse will be considered alimony for Federal tax purposes only if:


    

  • You do not file a joint tax return with your spouse or former spouse;
    • 

  • Payments are made in cash, checks or money orders;
    • 

  • The payment is received by your spouse or former spouse
    • 

  • The document under which it is paid  does not say that the payment is not alimony;
    • 

  • You and your spouse are not members of the same household when you make the payment;
    • 

  • You have no liability to make the payment after the death of your spouse or former spouse, and
    • 

  • Your payment is not child support or for a property settlement.
    • 



Alimony does not include:


    

  • Payments for child support
    • 

  • Property settlements
    • 

  • Payments to keep up the payer’s property, or
    • 

  • Use of the payer’s property
    • 



The payor of alimony may deduct from income on his taxes the amount of alimony or separate maintenance paid.  The recipient must include in income alimony or separate maintenance she received.


As indicated above, child support is never deductible. Also, noncash property settlements, whether in a lump sum or installments, are not alimony. Voluntary payments are also not considered alimony for tax purposes.


 


 

		

		
Filed Under: Alimony  Tagged With: , , , , , , , , , , , , , , , ,  

	

		


				
Things a Divorce Lawyer Won’t Tell You Unless You Ask
 
		
				

			
If you are considering hiring a divorce lawyer to help you there are certain questions you need to ask during your consultation.




Many lawyers will address these things without you asking them but many won’t unless prompted.  Here are some questions you should ask.


    

  1. How many years of experience do you have in family law?   Lawyers that have not been doing family law for long are unlikely to come out and say it out of fear that the potential client won’t hire.
    2. 

  2. Do you do anything  other than family law? All lawyers have law degrees, but many lawyers have several practice areas they work in.  If you had a heart problem you likely would not want your general practitioner to operate… you’d want a heart surgeon.  Why would you want a generalist to handle your divorce case?  Alimony, equitable distribution, and other family law issues are complicated.
    3. 

  3. What steps are involved in the process and how long will it take?   It is the first time you’ve been through but your lawyer has doen it many times.  Your lawyer  should tell you the steps in the process.  if you get the sense that the lawyer does not know the steps you should be talking to another lawyer.
    4. 

  4. How much will this cost me?  There are two schools of thought among lawyers about how to charge for their time in family law cases: flat fees and hourly.   The lawyer should indicate that your fees will be set out in a written agreement.  Make sure you know the hourly rate of your lawyer and staff that works on your case.
    5. 

  5. How will we communicate?  Most lawyers these days will use email. Ask your lawyer if they prefer phone contact over email, and how long you should expect to wait for a return call or email response.
    6. 

  6. Do you recommend mediation? Some lawyers like to settle cases and don’t like to go to court.  Some lawyers like to go to court and settlement is a last option.  You want an attorney that is a skilled trial lawyer and who thinks settlement should be attempted whenever possible.
    7. 

  7. What fees and costs can I expect other than charges for your time? Your local county clerk’s office will charge a filing fee to open a case. There are also filing fees for motions and service fees if you have to pay a process server to serve your spouse with divorce papers. Your case may require experts, such as custody evaluators, appraisers, accountants, social workers, or psychologists. Ask your lawyer what costs to expect, what experts may be needed, and how you will be charged for these additional services.
    8. 

  8. How would you predict a judge would rule on the issues in my case?  No lawyer can or should guarantee a result; however, they can give you an idea of what a likely result would look like and give you an idea whether or not the outcome you want is likely or unlikely.
    9. 

  9. How do you share information with me? In 2012 there is no reason for any attorney not to make provisions for a client to be able to access documents in their case over the internet and to get immediate notification when a document is posted to their file.  Your attorney should have email and be willing to share his or her cell phone number with you.
    10. 





____________________


Raleigh divorce lawyer Scott Allen handles alimony, equitable distribution, child support,  child custody, and temporary custody  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.  



		

		
Filed Under: Getting Started  Tagged With: , , , , , , , , , , , , , , , , , ,  

	

		


				
Domestic Violence – The Basics
 
		
				

			
The North Carolina General Assembly defines domestic violence as an action upon another party or minor living with or in the custody of the person with whom the aggrieved party has or has has had a personal relationship. This includes attempting to cause bodily injury, or intentionally causing bodily injury. It also includes placing the distressed party’s family or home of serious injury or harassment that leads to severe emotional distress or committing any act defined under NCGS 14-277.3A to 14-7.7.


The personal relationship in this statue refers to a relationship in which the parties are married or were married, members of the opposite sex who live together or have lived together at some point. It can also refer to parents in relation to their child or those acting as the child’s guardian. Under NCGS 50B, the distressed party is not allowed to get an order of protection against a child they are related to whom is under 16 years old. NCGS 50 B, which covers the domestic abuse statute in North Carolina, also does not permit an aggrieved party of domestic abuse to get an order or protection against someone they have a child with, live or used to live with, or someone they are dating or used to date. This does not relate to business relations and friends on a platonic level.


Victims of abuse can file a complaint for a  Domestic Violence Protective Order so long as its in accordance with Chapter 50 B. Victims can obtain a 50 B, DVPO if you have or have had a personal relationship with the abuser, lived with them, related to them, or any other circumstance explained sited above. In North Carolina, the domestic violence protective order statues are often referred as DVPO, 50B, or a restraining order.


Domestic violence victims in North Carolina who are filing a DVPO must prove that the abuser attempted to cause injury or distress the victim or his or her family member as described in the statute. A 50B protective order may direct the alleged abuser to stay away from the victim and not allow the abuser to threaten the victim or his/her family members.


Domestic violence victims can sometimes find other services through an order of protection in North Carolina. In some cases it can enable the alleged abuser to pay monetary relief. For example, an abuser may be required to pay their portion of child support and face eviction.  Since such dire consequences are possible, it is especially important for the victim to make sure they talk to the right attorneys in North Carolina to make sure they have a case a domestic violence case to present.


 


____________________


Raleigh divorce attorney Scott Allen handles domestic violence cases 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.  

		

		
Filed Under: Domestic Violence  Tagged With: , , , , , , , , , , , , , , , , , , , ,  

	

		


				
Can a Child Decide Which Parent Gets Custody in NC?
 
		
				

			
Testimony of a Child in NCI often get asked what impact a child’s wishes has on the court’s determination of custody.  In North Carolina, your child does not get the final say.


The law is that the court may use what a child tells him or her as evidence, but the final say is the judge’s.  North Carolina law does not set out an age when a person may be a witness in court.  The legal test is whether the minor is a competent witness and that means they have to be able and old enough to know what it means to tell the truth and can express them selves in an understandable way.


Unless both parties agree, the child must testify from the witness stand.  This is a very stressful event for the child, the parents, lawyers and judge.  Usually, if a child is going to be brought in, everyone wants the impact on the child to be reduced as much as possible.   Usually there is an agreement that the district court judge will talk to the judge in her office.


Regardless of what a child has to say about their preferences, a judge may decide in favor of the other parent.  This is because sometimes the district court judge with find that what the son or daughter is saying has been “bought” by a parent with promises.   Sometimes, the court might find that the child simply does not know what is best for herself.  For example, the parties’ son might prefer to live with the parent who has fewer rules, more flexibility  with curfews,  or  who does not make them do chores.  The maturity of the minor is a factor for the judge to evaluate.


In conclusion, deciding where the child should live is about what is in the best interest of the child and not about what the child says he or she wants.


____________________


Raleigh child custody attrorney 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.  


 


 

		

		
Filed Under: Child Custody  Tagged With: , , , , , , , , ,  

	

		


				
Why Take a Deposition in a Family Law Case?
 
		
				

			
NC DepositionI am a strong proponent of taking depositions in contested family law cases in North Carolina.  They can help in many ways.


A deposition is type of discovery proceeding where a party or witness is required to answer questions before a court reporter while under an oath or affirmation to tell the truth. A deposition happens in one of the lawyer’s offices or at an agreed-on location. This kind of proceeding does not take place in the presence of a district court judge.


The frequency of depositions is different county-to-county.  For example, they are very frequent in Wake County divorce cases.  Lawyers in Wake County contested custody cases, equitable distribution, and alimony cases often take them.  In Orange County, North Carolina, deposition is in family law cases are less frequent.  Local practice has much to do with what and how discovery tools are implemented.


Why Take a Deposition?


There are several reasons to take a deposition in a contested divorce, alimony, postseparation support, equitable distribution, child custody or child support case.


    

  • Getting evidence;
    • 

  • Committing the witness to a certain version of events;
    • 

  • Educating opposing counsel on case weaknesses;
    • 

  • Educating a client on case weaknesses; and
    • 

  • Assisting settlement.
    • 



Getting Evidence:


It is important to ask questions and get answers in a particular way at the deposition.  I find that being friendly and conversational with the witness is usually the best approach.  It does no good to ask the hard questions at the beginning of the deposition because it will cause the witness to talk less, when the goal of the deposition is to have the witness talk more so everyone can understand  the facts and opinions as the witness sees them.


I want to use a deposition to get evidence because, as tools go for lawyers, the deposition is the least-filtered way to get the information.  For example, I sometimes send written questions (called interrogatories), but the party’s attorney has the ability to assist in the answering.  I usually don’t want the attorney’s answers; I want the party’s answers.


Getting the evidence means that I am better prepared for the trial.  We know what the witness is going to say and we can decide on what documents or  other witnesses we would need to call at the hearing if we want to dispute what the witness will say in court.


Committing the witness to a certain version of events:


Since the proceeding is recorded and a transcript produced, if the party or witness testifies differently at the hearing or trial than at the deposition I can, and often do, point that out.  That has the effect of reducing the credibility of the witness in the eyes of the court.


Education:


The depositions of parties is important because that is frequently the first time the opposing lawyer will get a sense of the party as a person and witness in court.  Sometime lawyers discover that the  other spouse is not quite the way our client has portrayed them.  I need to know if the  other party will make a good witness or bad witness.


Assisting Settlement:


The deposition can and does assist settlement of the case because of the forgoing factors.   Sometimes I have settled cases at lunch breaks of depositions.  It forces the lawyers and parties together and highlights the seriousness of the situation.


 


____________________


Raleigh divorce lawyer Scott Allen has taken and defended hundreds of depositions in all kinds of family law cases.  


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


 


 

		

		
Filed Under: Discovery and Depositions  Tagged With: , , , , , , , ,  

	

		


				
New Firm Announced:  Allen and Spence
 
		
				

			
 


Raleigh, November 24, 2011


Attorneys Scott Allen and Amanda Spence announce the formation of a new Raleigh divorce law and elder law firm, Allen & Spence.  The new office is located in The Atrium at 2501 Blue Ridge Road in Raleigh.


While Allen & Spence is a new firm, the partners have each practiced law in Wake County for over seventeen years.


Scott Allen is a trusted and experienced litigator, mediator, and appellate lawyer.  He works with individuals and families in matters of child custody, child support, equitable distribution, alimony, divorce, domestic violence, and alienation of affection and criminal conversation cases.


Amanda Spence is an experienced and trusted elder law attorney.  She works with families and individuals in matters related to elder law, trusts, nursing home issues, Medicaid, wills and estates.


Scott Allen and Amanda Spence are both graduates of the University of North Carolina School of Law.  Mr. Allen received his undergraduate degree, with honors, from North Carolina State University and Ms. Spence received her degree, with honors, from the University of North Carolina at Chapel Hill.


According to Mr. Allen: “The population in the here is getting older and recent U.S. Census data indicates that North Carolina couples marry and divorce at slightly higher rates than people in most other states.  It’s well known that divorce, death, and long-term illness of a family member are among the most stressful events in life. We are caring, experienced attorneys and are able to guide our clients through life’s trying times.”


The Raleigh family law firm of Allen & Spence, located on 2501 Blue Ridge Road, Suite 250, in Raleigh, N.C., concentrates on family law and elder law, including divorce, child custody, child support, visitation, alimony, post-separation support, equitable distribution, Medicaid, wills, trusts and estates. Mr. Allen is also a trained mediator and is a parent coordinator.


 


For more information, contact the firm by calling (919) 863-4183 or visit www.allenspence.com.

		

		
Filed Under: Press Releases  Tagged With: , , , , , , , , , , , , , , , , , , , ,  

	

		


				
Parent Coordinator in Child Custody Cases
 
		
				

			




Parent CoordinatorA district court judge in North Carolina may appoint a parenting coordinator in child custody cases.  A parent coordinator is a person designated by the court and assigned to the case to reduce conflict between the parents for the welfare of the children in high conflict child custody cases in Wake County and other counties in North Carolina.


The parent coordinator may be appointed to  identify disputed issues, reduce misunderstandings, explore compromise, clarify priorities, develop methods of collaboration in parenting, and ensure compliance with the court’s custody order.  At any time in a child custody case the district court judge may appoint a parent coordinator if all the parties agree and consent to the appointment.  Furthermore, the court may appoint a parenting coordinator without the consent of the parties upon entry of a custody order if the court finds that:




    

  • The action is a high-conflict case and the appointment is in the best interest of the child or children.
    • 

  • The parties are able to pay the cost of the coordinator.
    • 

  • The appointment order must specify the issues the coordinator is to assist the parties in resolving and may incorporate any agreement made by the parties as to the coordinator’s role.
    • 





A high-conflict custody case is one where the district court judge finds that the parties demonstrate an ongoing pattern of excessive litigation, anger and distrust, verbal abuse, physical aggression or threats of physical aggression, communication issues regarding the children or other conditions that the court determines warrant the appointment of a parenting coordinator.


In North Carolina the district court maintains a list of qualified parenting coordinators. To be eligible, the person must meet the following requirements:




    

  • Hold a master’s degree in psychology, law, social work, counseling, medicine, or a related subject area.
    • 

  • Have at least five years of related professional experience.
    • 

  • Hold a current license in the parent coordinator’s area of practice.
    • 

  • Complete the required training in topics related to the developmental stages of children, the dynamics of high-conflict families, stages and effects of divorce, problem solving techniques, mediation and legal issues.
    • 

  • To remain eligible, the person must also attend parent coordinator seminars providing continuing education, group discussion, peer review, and support.
    • 









____________________


Raleigh divorce lawyer Scott Allen is a designated parent coordinator in Wake County.  He also 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.  






		

		
Filed Under: Child Custody  Tagged With: , , , , , , , ,  

	

		


				
You’ve Been Named an Executor; Now What?
 
		
				

			
If you’ve been appointed as an Executor or Executrix under a North Carolina resident’s Last Will and Testament, you must bring the original Will to the courthouse in the county where the decedent lived and qualify to administer the Estate.


You’ll find the forms you need to complete here:


http://www.nccourts.org/Forms/FormSearch.asp


If you need help completing these forms or assistance in administering the Estate, the law entitles you to hire an attorney at the Estate’s expense to aid you in these tasks.


_________


Attorney Amanda Spence has assisted hundreds of clients with probate and estate administration matters in counties throughout North Carolina. Contact her at (919) 863-4183 or aspence@allenspence.com for help.

		

		
Filed Under: Probate and Estate Administration  Tagged With: , , , , , , , , , , , , , , , ,  

	

		


				
Do You Really Need a Revocable Living Trust?
 
		
				

			
I often receive calls from clients asking if I could set up a Revocable Living Trust for them. Sure, I can, but the real question is why do you think you need a trust?


Many people believe they need a trust so that their assets will avoid probate at their death.  Financial advisor Suze Orman is constantly on television insisting that everyone must have a revocable living trust. While such trusts may be useful in states like New York or California where probate can be costly and time-consuming, that’s not generally the case in North Carolina. In North Carolina, probate is fairly quick and cheap, and in many situations, you’ll pay more to set up a trust than you’d pay in probate fees.


Revocable living trusts can be a big money-maker for attorneys, but why should you pay a few thousand dollars for a trust when your estate could be probated for only a few hundred dollars? Certainly, trusts can be valuable for certain clients, such as those with a disabled child, those seeking to protect assets from the cost of nursing home care or to qualify for certain government benefits, and those with taxable estates. However, for those clients merely seeking to avoid probate, a trust is not always the answer.


______________________


Is a trust right for you?  Contact attorney Amanda Spence to discuss your elder law and estate planning needs by telephone at (919) 863-4183 or email at aspence@allenspence.com.

		

		
Filed Under: Elder Law  Tagged With: , , , , , , , , , , , , , , , , , , , , , , ,  

	

		


				
Temporary Custody in North Carolina
 
		
				

			


Temporary child custody is an important component of the trial court’s powers to protect children in North Carolina.


G.S. § 50-13.5(c)(2) and (d)(2) give the district court jurisdiction to enter temporary custody and support orders for minor children.  G.S. § 50-13.5(d)(2) provides that temporary orders may be entered “[i]f the circumstances of the case render it appropriate.”  That statute gives the judge a great deal of discretion about when and hot to have a temporary child custody hearing and what the order will say.


 


In Wake County, North Carolina, if a complaint or motion for child custody is filed and there is a request for temporary child custody, a hearing for temporary child custody is automatically scheduled.  That temporary child custody hearing is scheduled for two hours at the courthouse in Raleigh and each party is given one hour to call witnesses, present evidence, and make their case for the temporary award.


A temporary child custody order establishes each party’s right to custody pending the resolution of a claim for permanent custody and establish order for a family that is in a chaotic situation.  The court will often establish both a legal custody arrangement and a physical custody arrangement.   The temporary child custody order is, in many ways, only a stop-gap measure by the court to impose a schedule when the parents cannot agree,


In certain custodial situations a temporary child custody order may be entered ex parte under appropriate circumstances such as when there is a risk or harm or one parent is fleeing the state with a child.  The statute is clear that a temporary order that changes custody or changes the living arrangements of a child cannot be entered ex parte unless the child risks bodily injury, sexual abuse, or removal from the state for purpose of evading the jurisdiction of the court.  You can find more information about emergency custody here.












Unlike the rules about preliminary injunctions, a temporary custody order entered ex parte does not expire automatically after ten days.


The statutes and case-law do not preclude a temporary custody hearing after a motion to modify a permanent custody order has been filed. Also, there appears to be no statutory prohibition against asking the court to modify a temporary order.


Finally, just as in a full hearing on custody, the court may consider a request or make its own motion for the appointment of a parent coordinator.


If you are facing the prospect of a temporary child custody hearing then you should obtain the assistance of an attorney.   The temporary child custody hearing is very important because it establishes legal rights and obligations and is sometime a framework for what the permanent child custody order will look like.


 


 


____________________


Raleigh divorce lawyer Scott Allen handles modification of custody, 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.  









		

		
Filed Under: Child Custody  Tagged With: , , , , , , , , , , , , , , , , , ,  

	

		


				
Modification of Child Custody in North Carolina
 
		
				

			






North Carolina law allows for the modification of a child custody order under certain circumstances.   This article explores the  law and the circumstances allowing the trial court to modify a custody order.


This article assumes that a North Carolina custody order is in place.  A separation agreement that has not been incorporated is not a court order.  A parenting agreement or consent order that has been signed by the parents and the judge is a court order.  An order of a different state that has been registered to allow modification is also the kind of order that can be modified.


Recall that if a judge hears a child custody case where there is no order in place or there is only a temporary order, the legal standard in North Carolina is the best interest of the child.


In a modification proceeding there are actually two legal hurdles before a court may change the order.  G.S. § 50-13.7(a) allows an child custody modification “at any time, upon a motion in the cause and a showing of changed circumstances,” except as otherwise provided in G.S. § 50-13.7A.  (50-13.7A deals with certain situations where a parent is in military service).


The best interest of the child is not considered until there has been a showing of a substantial change affecting the child.    The district court judge must find a substantial change of circumstances before it can change an existing order.
















The party seeking modification has burden of showing changed circumstances. However, after there has been a showing of a substantial change affecting the child, neither party has a burden of proof on the question of best interest.


There is no statutory amount of time that must pass before a motion to modify may be filed as long as the person filing the motion can meet their burden and prove a substantial change of circumstances.


So what kinds of circumstances may the court consider?  It is not possible to make an exhaustive list but the basic rules are:


    

  • The change of circumstances must be substantial;
    • 

  • The district court judge must consider changes that have salutary effects upon the child and those which will have adverse effects upon the child;
    • 

  • Speculative evidence that a substantial change may occur sometime in the future will not support a change in custody.
    • 

  • The evidence must demonstrate a connection between the substantial change in circumstances and the welfare of the child.
    • 



Raleigh family law attorney Scott Allen handles child custody cases every day  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.









		

		
Filed Under: Child Custody  Tagged With: , , , , , , , , , , , , , , , , , , , , ,  

	

		


				
Divorce from Bed and Board
 
		
				

			
With decreasing frequency in my practice over the past seventeen years I get asked about divorce from bed and board.


“Divorce from bed and board” under North Carolina law is a judicial separation.  In other words, it is a separation authorized by the court. This action suspends cohabitation, but does not dissolve the marital relationship like an absolute divorce.


A claim for divorce from bed and board must be based on certain statutory marital fault grounds that include adultery, abandonment, and other bad marital conduct.  A spouse defending this claim may defend by denying the grounds or by raising certain legal affirmative defenses such as condonation (forgiveness) and recrimination (the complaining spouse committed fault to and is therefore not entitled to the divorce from bed and board).


So what does a divorce from bed and board accomplish?  Most of the time these actions are filed to get one spouse out of the house and to cut off certain rights as set out in G.S. 31A-1(b).


So why did I start off this article by talking about the decreasing frequency of these claims? Because I have noticed fewer after the 1995 amendments to the alimony laws in North Carolina.  Prior to 1995, fault played a much greater role in the entitlement of alimony than it did after the changes in the law.


That is not to say there is no basis to file for divorce from bed and board.  there could be good reasons to do so in certain cases.  When the spouses just can’t get to a separation it is really the only claim that makes sense to file to attempt to cause a separation.  I have seen a few cases where a court heard child custody prior to the parties’ separation and granted custody an possession of the house to one parent; however, I have also seen some judges refuse to deal with custody until the separation occurs.


______________________________


Family law attorney Scott Allen has litigated divorce from bed and board 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.


 


 

		

		
Filed Under: Divorce  Tagged With: , , , , , , , , , , , , , , , ,  

	

		


				
Premarital Agreements
 
		
				

			






NC Premarital AgreementNorth Carolina adopted a version of the Uniform Premarital Agreement Act and our version of the act is is applicable to any premarital agreement executed on or after July 1, 1987.


A premarital agreement is a documents signed by parties  in anticipation of marriage that  addressees what will happen in the event of divorce of a spouse or death of a spouse.








Unlike a regular contract, a premarital agreement is enforceable without the exchange of consideration by the parties.  Consideration was a traditional element of contracts under the common law and, in essence, meant that the parties must bargain for and exchange something of value before a valid contract is created.  In family law, North Carolina has abandoned this common law requirement both in premarital agreements and separation agreements.


Although consideration is not required, a valid premarital agreement under the premarital agreement act must have certain qualities:


    

  • A premarital agreement must be in writing and signed by both parties.
    • 

  • A premarital agreement is effective upon marriage and marriage is a prerequisite of an effective premarital agreement.  This means that if the parties do not marry the premarital agreement is not valid.
    • 

  •  Premarital agreements may dispose of their property upon divorce through the provisions of the agreement rather than by equitable distribution.
    • 

  • Premarital agreements under North Carolina law may control rights and obligations in property, whenever and wherever acquired or located.
    • 

  • “Property” is defined as “an interest, present or future, legal or equitable, vested or contingent, in real or personal property, including income and earnings.”
    • 

  • Premarital Agreements may control the right to sell, transfer, buy, use, exchange, abandon, lease, consume, expend, assign, encumber, dispose of, or otherwise manage and control property.
    • 

  • Premarital agreements may bar alimony and postseparation support and attorneys fees under certain circumstances.
    • 

  • Premarital agreements may control the making of a will or trust to carry out the agreement.
    • 

  • Premarital agreements may impact ownership rights in and disposition of the death benefit in a life insurance policy.
    • 

  • A premarital agreement may define which law applies to it.
    • 

  • Finally, a premarital agreement may control “Any other matter, including personal rights and obligations, not in violation of public policy or a criminal statute.”
    • 





Premarital agreements can be attacked under certain circumstances.  Here is an excellent article that deals generally with attacking agreements under the UPAA.




Family law attorney Scott Allen drafts, negotiates, and litigates premarital agreements 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.

		

		
Filed Under: Premarital Agreements  Tagged With: , , , , , , , , , , , , , , , , , , , , , ,