Why You Need a Plan for your North Carolina Divorce

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

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

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

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

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

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

Filed Under: Family Law Tagged With: Make A Plan, north carolina, north carolina divorce, raleigh, Your Divorce

Representing Yourself in Wake County Family Court: Part 2

This is the second in a series of articles on representing yourself in Wake County Family Court. In Part 1 I gave a general overview.

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.

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

Filed Under: Wake County Family Court Tagged With: family law cases, legal terms, local rules, north carolina, wake county

Can You Handle Your Own North Carolina Divorce?

I frequently get asked by clients, potential clients, and people just looking for North Carolina divorce information, whether they can handle their own divorce. The legal answer is always yes you can… any person can represent their own interest in court without a lawyer. All the way from small claims cases to death penalty defense, you can be your own lawyer.

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.

Filed Under: Divorce Tagged With: Alimony, child custody, Divorce, divorces, family court, marriage, north carolina, social issues

Retirement Division in Divorce

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.

Filed Under: Property Distribution Tagged With: defined benefit plan, defined contribution plans, divorce law, north carolina, qualified domestic relations order, retirement asset, retirement benefits

Temporary Child Support in Wake County, North Carolina

Temporary child support is child support ordered pending a final determination of child support. Under Wake County local rules, temporary child support hearings are limited in duration to one hour of court time.

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.

(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.

(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.

(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.

(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.

Filed Under: Child Support Tagged With: child support, child support order, childhood, court, determination, Divorce, family, family law, finals, human development, local rule, marriage, north carolina, North Carolina child support, parenting, social issues, temporary child support, wake, wake county

The Affidavit in North Carolina Family Law Cases

An affidavit is a written statement confirmed by oath or affirmation for use as evidence in a court case. The person making the affidavit is called the affiant. In family law cases in North Carolina affidavits are frequently used for a number of different purposes.

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.

Filed Under: Child Custody Tagged With: affiant, affidavit, cases, child custody, child support, Divorce, evidence law, family law, family law cases, financial affidavit, frequently, legal documents, motion, north carolina, north carolina child support guidelines, north carolina family law, sworn declaration

The Child Custody Evaluation in Wake County, North Carolina

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.

Filed Under: Child Custody, Raleigh Tagged With: child custody, child custody cases, child custody evaluation, custody evaluation, family law, marriage, north carolina, parental alienation syndrome, parenting

The Case for Calm: The Stress of Divorce

Divorce is stressful. I know this and I have witnessed the impact of divorce and separation. I have seen hundreds of clients over the years and one thing is clear: everyone responds to divorce differently.

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:

Inability to focus.
Sleep problems.
Anxiety.
Anger.
Depression.
Not eating.
Overeating.
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:

Inability to follow through with necessary documents and preparation. A client that can’t focus can help in his or her own case.
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.

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.
Physical exercise. I know that this can help the mind and body deal with stress.
Self-help. There are books on how to deal with stress, web sites, and other resources. Use them.

I don’t think there is any way to eliminate stress from a divorce. However, picking the right lawyer can make the process less stressful than it might otherwise be. Interview several lawyers. Listen to the legal advice and get a sense of how you think you will get along with each.

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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.

Filed Under: Divorce Tagged With: acute stress reaction, anxiety, calm, case, dealing with stress, Divorce, divorce cases, divorce lawyers, divorce process, effectively, family law, human interest, implications of divorce, major depressive disorder, north carolina, social issues, stress, stressful, substance abuse, sympathetic nervous system, symptoms

Emergency Child Custody in North Carolina

The law in North Carolina is that a parent may seek emergency custody in limited circumstances when there are extreme safety concerns or there is a risk that a parent will move or has moved the child from North Carolina to avoid this state’s jurisdiction. In North Carolina child custody cases, emergency temporary orders may be entered upon the request of one party without the other party being present in court. This is called an “ex parte” hearing and in this type of hearing only one side tells the court its version of events. The ex parte order, if entered by the court, will be reviewed with notice and an opportunity for the other party to be present within ten days.

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.

Filed Under: Child Custody Tagged With: best interests, child custody, child endangerment, children, court, danger, Divorce, emergency, emergency child custody, emergency custody, ex parte, family law, fathers' rights, marriage, north carolina, parenting, request, social issues, uniform child abduction prevention act, uniform child custody jurisdiction and enforcement act

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.

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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.

Filed Under: Discovery and Depositions, Family Law Library Tagged With: any party, discovery, ghana, law, motion, motion to compel, moving party, nc, nc general assembly, nc rules, north carolina, obtaining, party, politics, rule, rules, witness, witnessing

Postseparation Support in North Carolina

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.)

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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.

Filed Under: Alimony, Family Law Library Tagged With: Alimony, conflict of laws, dependents, Divorce, divorce in the united states, divorce process, ensure, family, family law, financial, get, law, marriage, north carolina, raleigh divorce, raleigh divorce lawyer, spouses, support, temporaries, temporary alimony, wake county

Child Support Forfeiture of License – NCGS 50-13.2

Failure to pay child support can have serious consequences. In addition to the contempt powers of the court as found in NCGS 5A, the court may revoke or suspend licenses. This includes driver, hunting, and professional licensing, among others.

§ 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.

Filed Under: Family Law Library Tagged With: assignment, business license, child support, child support in the united states, child support payment, childhood, contract law, family law, forfeiture, license, licensing board, licensure, ncgs, north carolina, occupational license, parenting, pay child support, professional license, rights, subpoena, suspended license

How Child Support is Enforced. NCGS 50-13.9

§ 50‑13.9. Procedure to insure payment of child support.

(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.

Filed Under: Family Law Library Tagged With: assignment, child support, child support agency, child support enforcement agency, child support in the united states, child support order, child support payment, childhood, children, contempt of court, court, Divorce, enforce, family law, marriage, ncgs, north carolina, parenting, social issues, state child support, uniform reciprocal enforcement of support act

Child Support in NC – NCGS § 50‑13.4. Action for support of minor child.

§ 50‑13.4. Action for support of minor child.

(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.

Filed Under: Family Law Library Tagged With: administrative office of the courts, Alimony, child care, child custody, child suport, child support, child support enforcement, child support in the united states, child support obligation, child support owed, child support payment, children, department of health and human services, Divorce, family, family law, fathers' rights, human development, marriage, ncgs, noncustodial parent, north carolina, parenting, social issues

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

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.

Filed Under: Child Custody Tagged With: appeal, child custody, children, civil law, common law, contempt, contempt of court, court, criminal contempt, custody, Divorce, enforce, enforceable, family, family law, fathers' rights, get, how do i, law, my child, north carolina, North Carolina child custody, social issues

Taxes and Your Divorce – North Carolina Child Support

Unlike alimony, child support is not taxable to the recipient and it is not deductible by the person paying it.

There are, however, many tax issues related to child support that you need to consider whether you have to go to court to resolve child support or if it is settled by agreement. Here are some common questions I get asked about child support and taxes.

Q: Who gets to claim the child on taxes?

A: The IRS says that the parent who has custody for more than half the year gets to claim a child.

Q: Since I pay child support, shouldn’t I get to claim the child on my taxes?

A: No. The North Carolina child support guideliens are drafted in a way that the amount of child support is calculated on the assumption that the child support recipient claims the child on his or her taxes.

Q: If I pay child support, can I ask the court to allow me to claim a child on my taxes?

A: Yes. In some circumstances the district court judge in North Carolina may allow the payor of child support to claim the child on his or her taxes.

Q: Does the recipient of child support have to show it as income on her taxes?

A: No.

Q: If I pay child support, may I deduct it?

A: No.

Q: What if my spouse or ex-spouse and I both claim the children on our separate tax returns?

A: One or both of you will have a problem with the IRS.

Q: What if we have an agreement that allows one parent to claim the children?

A: That is acceptable, but the spouse giving up the right to claim a child may need to sign an IRS form. The form is IRS form number 8332.

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Raleigh divorce attorney 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.

Filed Under: Child Support Tagged With: Alimony, child custody, child support, children, deductible, Divorce, family, family law, fathers' rights, human interest, marriage, north, north carolina, parenting, payor, recipient, social issues, taxable, taxes

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.

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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: abuse, allow, basic, basics, bodily injury, court, domestic abuse, domestic violence, elder abuse, ethics, law, legal action, north carolina, personal relationship, protection of women from domestic violence act, restraining order, social issues, statutes, victimes, violence, violence against women

Scott Allen Approved as Parent Coordinator

Raleigh, November 24, 2011.

Raleigh divorce lawyer Scott Allen has been approved as a parent coordinator by the chief district court judge of the 10th Judicial District in Wake County.

When asked about his role as a parent coordinator, Mr. Allen explains: “I am excited for the opportunity to help families in this way. A district court judge in North Carolina may appoint a parenting coordinator in certain child custody cases. If asked to help in a case, my role is to reduce conflict between the parents for the welfare of the children in high conflict child custody cases.”

Mr. Allen further explained that a parent coordinator does not replace the district court judge in the assigned family court case but is only there to help in a difficult child custody case. The role of the parent coordinator is as defined by the judge in the high conflict custody case and, depending on the case, Mr. Allen says he may be called on 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. In other words, I will be there to help promote the best interest of the children.”

Under North Carolina law, 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. These high-conflict cases are some of the most difficult cases for the courts to deal with because the high level of parental animosity and the impact on the children.

Mr. Allen says he looks forward working with families as a parent coordinator.

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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: Press Releases Tagged With: 10th, allen, approved, child custody, Divorce, divorce lawyer, family, family law, fathers' rights, human development, marriage, noncustodial parent, north carolina, parent coordinator, parent coordinators, parenting, raleigh, raleigh divorce lawyers, scott allen, social issues, wake county

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: Alimony, allen, amanda spence, child support, Divorce, divorce law, elder law, family, family law, firm, human development, human interest, law, laws, marriage, new law, north carolina, raleigh, scott allen, social issues, spence

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.

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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: administer, administration of an estate on death, amanda spence, appointed, common law, courthouse, decedent, executor, explaining, inheritance, law, names, north carolina, probate, real property law, testament, will

North Carolina Medicaid

North Carolina Medicaid Manual

http://info.dhhs.state.nc.us/olm/manuals/dma/abd/man/

This online manual contains the policy used in determining eligibility for Medicaid in North Carolina for the aged, blind, and disabled. Medicaid assists people with the cost of care in rehabilitation centers and skilled care in nursing homes.

Medicaid Application

http://www.ncdhhs.gov/dma/medicaid/applications.htm

This printable application can be completed and mailed to county Departments of Social Services in North Carolina to apply for Medicaid. Because eligibility for Medicaid is tied to the amount of assets a person owns and because the timing of an application can be an important factor in eligibility, we highly recommend that you consult an elder law attorney before applying for Medicaid.

Special Assistance Manual

http://info.dhhs.state.nc.us/olm/manuals/doa/sa/man/

This online manual contains the policy for the Special Assistance program, which covers the cost of care in rest homes and some assisted living facilities. The eligibility rules for Special Assistance are quite different from Medicaid’s rules.

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Amanda Spence has assisted hundreds of clients with Medicaid applications and appeals in counties throughout North Carolina. If you’re thinking of applying for Medicaid or Special Assistance, contact Ms. Spence by telephone at (919) 863-4183 or by email at aspence@allenspence.com.

Filed Under: Elder Law Resources, Medicaid Tagged With: amanda spence, carolina medicaid, elder law, geriatrics, health, healthcare, manuals, medicaid, medicaid application, medicine, north carolina, north carolina medicaid, nursing home, nursing homes, online manual, resources, social issues, spence, united states

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.

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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: assets, avoid probate, client, common law, do i, eal property law, elder law, equity, estate planning, inheritance, law, living trust, need, neel, new york, north carolina, probate, probate fees, property law, revocable living trust, social issues, trust law, trusts, will

Wake County Child Custody Mediation

Wake County Child Custody Mediation.

The Wake County child custody mediation program was created by G.S. §§ 50-13.1(b), 7A-494, and 7A-495.

Any case with a contested issue of custody or visitation must be referred to mediation unless excused by order of the assigned district court judge. The statute requires that a case be sent to mediation “[w]henever it appears to the court, from the pleadings or otherwise, that an action involves a contested issue as to custody or visitation … .” This includes issues that arise in motions for modification of child custody and for contempt related to temporary child custody and child custody orders.

How is Wake County Custody Mediation triggered?

When a child custody complaint or motion for child custody is filed in Wake County, the process of child custody mediation is triggered by the filing of a coversheet with the filed request for custody. The parties are notified when the mediation orientation is scheduled.

Where Does it Take Place?

The custody mediation takes place at the Wake County Court House in Raleigh (directions). The first step is an orientation (where the parties learn about the process). At the orientation session, a date for the mediation session will be set. Failure to show up at the orientation or mediation session may result in a contempt motion and order being issued by the court.

Who Are the Mediators?

The orientation session and the mediation session are handled by county-provided mediators. Attorneys are not part of either the orientation or the mediation session. The county pays for the mediators time. A mediator is a neutral person and is not there to impose a decision. The mediator’s job is to help the two parents come to a mutually agreeable resolution of custody.

What Can Be Discussed?

The child custody mediation is not an appropriate place for parties to mediate alimony, child support, and other economic issues. Many times parties will want to get into these issues but the mediators are trained to firmly insist that the program is only about child custody.

Can it be Waived?

Mediation under the North Carolina statute is mandatory unless waived by the court for good cause shown by a party pursuant to a motion of either party or the court. Grounds for not requiring the mediation are:

A showing of undue hardship;
An agreement between the parties for voluntary mediation;
Allegations of abuse or neglect of the child;
Allegations of alcoholism, drug abuse, or domestic violence between the parents;
Allegations of severe psychological, psychiatric, or emotional problems.

What Happens if Mediation is Successful?

Finally, if mediation is successful, the mediator will prepare a draft parenting agreement which will be sent out to the parties and their attorneys for review. If they agree, the parenting agreement is signed by the parties and unless the court finds good reason not to, the agreement must be incorporated into a court order. This Parenting Agreement/Court Order is enforceable by the contempt powers of the court and is subject to modification.

What If You Need a Lawyer?

Call me at (919) 863-4183 or send an email to me at sallen@allenspence.com. I am familiar with the mediation system and can help you get into mediation with the other parent. I can also help you if your case must go in front of a judge on custody issues.

Filed Under: Child Custody Tagged With: child custody, child custody mediation, mediation, north carolina, parenting, wake, wake county, wake county child custody

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.

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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: child custody, custody, custody fight, district court, Divorce, ex parte, family, family law, fathers' rights, human development, law, marriage, mothers' rights, north carolina, north carolina district court, protect children, temporaries, temporary child custody, temporary custody

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: bergeron v. bergeron, best interests, child custody, child custody cases, child custody modification, child support in the united states, children, Divorce, family, family law, family law attorneys, fathers' rights, human development, law, laws, marriage, modification, north carolina, north carolina laws, parenting, scott allen, social issues

Annullment in North Carolina

Most everyone who gets married and then has immediate second thoughts wants to know if they can get an annulment in North Carolina. Usually the answer is no…. it is not a fix for a bad marriage decision.

An annulment is very different from a divorce. A North Carolina divorce simply terminates the marital relationship. An annulment on the other hand, is a judicial declaration that the marriage was void… in essence, that there was no marriage at all.

What are the grounds in North Carolina? This article explores that question.

The grounds for an annulment are

Bigamy. A bigamous marriage is a marriage between persons either of whom has a spouse living at the time of such marriage.
Marriage within a prohibited degree of kinship that is set out in the statute.
Underage party or parties.
Impotency.
False representation of pregnancy.
Want of will or understanding – lack of mental capacity.
Fraud.

As you can see, some of these legal grounds are not self explanitory. For example “prohibited degrees of kinship” is defined in the statute and should be explored further if a person is related to his or her spouse before they got married.

The defenses to an annulment lawsuit are:

Ratification of a nonbigamous marriage.
In a nonbigamous marriage, death of a party after cohabitation and birth of issue.
Estoppel.
Lack of standing.

While one would think that a declaration of a void marriage would cut off all claims for spousal support, that is not the case. Postseparation support may be ordered in an action for annulment pursuant to G.S. § 50-16.1A(4). Furthermore, just because marriage is annulled, if there are children then claims for child support and child custody are proper.

Like most family law claims, the district court is the proper court to file an action for annulment and a jury trial may be requested.

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Family law attorney Scott Allen has litigated annulment 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: Annulment Tagged With: annulment, north carolina, north carolina divorce, north carolina laws

How Can I Modify or Revoke My Premarital or Prenuptial Agreement?

I have been asked this question many time over my years of practice: ”I signed a premarital agreement, got married, and now don’t want it; how can I make it go away?” The answer provided by G.S. § 52B-6 and case law on the issue is that the premarital agreement act in North Carolina provides that a premarital agreement may be amended or revoked after marriage only by a written agreement signed by the parties.

If you want to get out of your prenuptial agreement you need to sit down with your spouse and talk about it. If he or she does not agree to change it or make it go away, your only choice is to see if you can get the agreement to be declared invalid.

Also, under certain circumstances a party who does not want to be bound by a premarital agreement can prove that it is unenforceable by showing: (1) The party did not execute the agreement voluntarily; (2) The agreement was unconscionable when it was executed and, before execution of the agreement, the party:

Was not provided a fair and reasonable disclosure of the property or financial obligations of the other party;
Did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided; and
Did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party.

As you can see, the issue of disclosure in a premarital agreement should get close attention by you and your lawyer.

It is also very important not to “spring” a premarital agreement on your fiancé just before the wedding. Not only would doing that likely spoil your relationship with your fiancé, it could create an argument about duress. Also, to protect the integrity of the agreement, you and your fiancé should have different lawyers.

Family law attorney Scott Allen negotiates and drafts 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: family law, marriage, modification, modify, north carolina, postnuptial agreement, premarital agreement, prenuptial agreement

Premarital Agreements

North 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: agreement, agreements, common law, contract, contract law, death law, Divorce, equitable distribution, family, family law, law, legal documents, marriage, north carolina, north carolina adopt, north carolina laws, overview, postnuptial agreement, premarital agreement, prenuptial agreement, relationship education, separation agreements, uniform premarital agreement act

2501 Blue Ridge Rd #250

Raleigh, NC 27607

(919) 863-4183

Raleigh Child Custody and Wake County Child Custody Evaluations

Child Custody Orders and Enforcement

Wake County Child Custody Mediation.

How is Wake County Custody Mediation triggered?

Where Does it Take Place?

Who Are the Mediators?

What Can Be Discussed?

Can it be Waived?

What Happens if Mediation is Successful?

What If You Need a Lawyer?

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