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Can You Handle Your Own North Carolina Divorce?

Allen & Spence - FAQI 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: , , , , , , ,

Temporary Child Support in Wake County, North Carolina

temporary child support in North CarolinaTemporary 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.

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

 

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

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

 

 

 

 

 

Filed Under: Child Support Tagged With: , , , , , , , , , , , , , , , , , ,

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:

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

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

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

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

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

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

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

Emergency Child Custody in North Carolina

Child Custody Best InterestThe 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: , , , , , , , , , , , , , , , , , , ,

Health Insurance and Medical Support – NCGS 50-13.11

The law in North Carolina on child support presumes that parents have a financial responsibility towards their children.   This such an important issue to the states and the federal government, that child support agencies have been established, including in North Carolina, that seek to establish parental child support obligations and enforce those obligations once established.  A frequent component of child support is health insurance.

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

The statute provides:

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

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

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

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

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

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

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

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

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

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

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

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: , , , , , , , , , , , , , , , , , , , ,

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.)

 

____________________

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: , , , , , , , , , , , , , , , , , , , , , , ,

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

Raleigh Child Custody

Child Custody Orders and Enforcement

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

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

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

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

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

____________________

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

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

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

Custody of Minor Child – NCGS 50-13.1

§ 50‑13.1. Action or proceeding for custody of minor child.
(a) Any parent, relative, or other person, agency, organization or institution claiming the right to custody of a minor child may institute an action or proceeding for the custody of such child, as hereinafter provided. Any person whose actions resulted in a conviction under G.S. 14‑27.2 or G.S. 14‑27.3 and the conception of the minor child may not claim the right to custody of that minor child. Unless a contrary intent is clear, the word “custody” shall be deemed to include custody or visitation or both.
(a1) Notwithstanding any other provision of law, any person instituting an action or proceeding for custody ex parte who has been convicted of a sexually violent offense as defined in G.S. 14‑208.6(5) shall disclose the conviction in the pleadings.
(b) Whenever it appears to the court, from the pleadings or otherwise, that an action involves a contested issue as to the custody or visitation of a minor child, the matter, where there is a program established pursuant to G.S. 7A‑494, shall be set for mediation of the unresolved issues as to custody and visitation before or concurrent with the setting of the matter for hearing unless the court waives mediation pursuant to subsection (c). Issues that arise in motions for contempt or for modifications as well as in other pleadings shall be set for mediation unless mediation is waived by the court. Alimony, child support, and other economic issues may not be referred for mediation pursuant to this section. The purposes of mediation under this section include the pursuit of the following goals:
(1) To reduce any acrimony that exists between the parties to a dispute involving custody or visitation of a minor child;
(2) The development of custody and visitation agreements that are in the child’s best interest;
(3) To provide the parties with informed choices and, where possible, to give the parties the responsibility for making decisions about child custody and visitation;
(4) To provide a structured, confidential, nonadversarial setting that will facilitate the cooperative resolution of custody and visitation disputes and minimize the stress and anxiety to which the parties, and especially the child, are subjected; and
(5) To reduce the relitigation of custody and visitation disputes.
(c) For good cause, on the motion of either party or on the court’s own motion, the court may waive the mandatory setting under Article 39A of Chapter 7A of the General Statutes of a contested custody or visitation matter for mediation. Good cause may include, but is not limited to, the following: a showing of undue hardship to a party; an agreement between the parties for voluntary mediation, subject to court approval; allegations of abuse or neglect of the minor child; allegations of alcoholism, drug abuse, or domestic violence between the parents in common; or allegations of severe psychological, psychiatric, or emotional problems. A showing by either party that the party resides more than fifty miles from the court shall be considered good cause.
(d) Either party may move to have the mediation proceedings dismissed and the action heard in court due to the mediator’s bias, undue familiarity with a party, or other prejudicial ground.
(e) Mediation proceeding shall be held in private and shall be confidential. Except as provided in this Article, all verbal or written communications from either or both parties to the mediator or between the parties in the presence of the mediator made in a proceeding pursuant to this section are absolutely privileged and inadmissible in court. The mediator may assess the needs and interests of the child, and may interview the child or others who are not parties to the proceedings when he or she thinks appropriate.
(f) Neither the mediator nor any party or other person involved in mediation sessions under this section shall be competent to testify to communications made during or in furtherance of such mediation sessions; provided, there is no privilege as to communications made in furtherance of a crime or fraud. Nothing in this subsection shall be construed as permitting an individual to obtain immunity from prosecution for criminal conduct or as excusing an individual from the reporting requirements of Article 3 of Chapter 7B of the General Statutes or G.S. 108A‑102.
(g) Any agreement reached by the parties as a result of the mediation shall be reduced to writing, signed by each party, and submitted to the court as soon as practicable. Unless the court finds good reason not to, it shall incorporate the agreement in a court order and it shall become enforceable as a court order. If some or all of the issues as to custody or visitation are not resolved by mediation, the mediator shall report that fact to the court.
(h) If an agreement that results from mediation and is incorporated into a court order is referred to as a “parenting agreement” or called by some similar name, it shall nevertheless be deemed to be a custody order or child custody determination for purposes of Chapter 50A of the General Statutes, G.S. 14‑320.1, G.S. 110‑139.1, or other places where those terms appear.
(i) If the child whose custody is the subject of an action under this Chapter also is the subject of a juvenile abuse, neglect, or dependency proceeding pursuant to Subchapter 1 of Chapter 7B of the General Statutes, then the custody action under this Chapter is stayed as provided in G.S. 7B‑200. (1967, c. 1153, s. 2; 1989, c. 795, s. 15(b); 1998‑202, s. 13(p); 2004‑128, s. 10; 2005‑320, s. 5; 2005‑423, s. 4; 2007‑462, s. 1.)

 

 

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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: Family Law Library Tagged With: , , , , , , , , , , , , , ,

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.

 

____________________

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: , , , , , , , , , , , , , , , , , ,

Taxes and Your Divorce – Alimony

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

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

  • You do not file a joint tax return with your spouse or former spouse;
  • Payments are made in cash, checks or money orders;
  • The payment is received by your spouse or former spouse
  • The document under which it is paid  does not say that the payment is not alimony;
  • You and your spouse are not members of the same household when you make the payment;
  • You have no liability to make the payment after the death of your spouse or former spouse, and
  • Your payment is not child support or for a property settlement.

Alimony does not include:

  • Payments for child support
  • Property settlements
  • Payments to keep up the payer’s property, or
  • Use of the payer’s property

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

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

 

 

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

Should I Settle My Raleigh Custody Case?

Child Custody in NC

Raleigh Child Custody Attorney Scott Allen on Settling Child Custody

Child custody decisions are often the most difficult part of any divorce.  I get asked this question all the time:  ”Scott, should I settle my child custody case?” I always say yes, settle child custody  if you can.

Why you should try to settle your Raleigh child custody case.

It is best for child custody cases to settle.  Whether you have a North Carolina child custody case or you are in another state, take my word for it:  you really should want to settle your child custody case.

I would not wish a child custody case on my worst enemy (I don’t think I have any enemies, but if I had one I wouldn’t wish it on him or her).  Why?  Because child custody cases stink.  They mess up children, they mess up relationships, and they cost a lot of emotional and financial resources.

Focus on the Best Interest of the Child.

Parents should look beyond their personal feelings and look at what their children need and work together as parents to help their children.  The “best interest” standard is the same concept the district court judge considers in a child custody case.  If both parents focused on their children’s needs rather than the parents wants or desires, the children would always be better off.

Invariably, I say these things and I hear the following: “Scott, I would settle if he/she would just be reasonable” or “what he/she is suggesting for custody is not good for the kids.”  I try to then point out that the other parent is likely saying the same thing to his/her lawyer about you.  That usually does not go over well, but I encourage my clients to see the world from the other parent’s point of view.

Can every Raleigh child custody case be settled?

I try to get parents to see the value in working out their custody issues.  Nonetheless, they sometimes don’t or won’t settle.  However, not every case can be settled because sometimes the parents’ views are simply irreconcilable, and a judge must make a decision.  Additionally, some parents engage in parental alienation. Some clients do listen to my advice and try to settle but their spouses or ex-spouses are not listening to their attorneys.  Sometimes a parent has a substance abuse problem or some psychological problem that makes settlement impossible.

Who should I call if I need help with a Raleigh child custody case?

As I write elsewhere, you should talk to at least two different Raleigh divorce lawyers before you decide upon who to hire.  If you want to talk to me about your case and possible representation, call me at (919) 863-4183 or email at sallen@allenspence.com.

 

Filed Under: Raleigh Tagged With: , , , , , , , , , , , , , , , , , , , ,

Domestic Violence – The Basics

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

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

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

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

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

 

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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: , , , , , , , , , , , , , , , , , , , ,

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.

____________________

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: , , , , , , , , , , , , , , , , , , , ,  

	

		


				
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: , , , , , , , , , , , , , , , , , , , ,  

	

		


				
North Carolina Medicaid
 
		
				

			
Medicaid Amanda Spence


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.


____________________


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: , , , , , , , , , , , , , , , , , ,  

	

		


				
Do You Really Need a Revocable Living Trust?
 
		
				

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


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


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


______________________


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

		

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

	

		


				
Custody and Visitation by Skype and Facetime
 
		
				

			






Skype, Apple Facetime and other video-conferencing technologies are being used more and more between parents and their children who are living primarily or temporarily at long distances.  North Carolina law allows the district court judge to order parental visitation via electronic communication in G.S. § 50-13.2(e).


Other states such as New Jersey are adopting laws allowing virtual visitation as well.


“Electronic communication” is defined in the statute as contact, other than face-to-face contact, facilitated by electronic means, such as by telephone, electronic mail, instant messaging, video teleconferencing, wired or wireless technologies by Internet, or other medium of communication.


To grant visitation by electronic communication the North Carolina district court judge must consider:


    

  • Whether electronic communication is in the best interest of the minor child.
    • 

  • Whether equipment to communicate by electronic means is available, accessible, and affordable to the parents of the minor child.
    • 

  • Whether there is any other factor the court deems appropriate in determining whether to grant visitation by electronic communication.
    • 











The statute does not allow electronic communication as a replacement or substitution for custody or visitation.   This an important point, especially for parents who live long distances form their children.  Also, this makes it clear that electronic communications are merely a supplement to face-to-face and in person visitation.


Electronic communication between the child and the parent may be subject to supervision as ordered by the court.  This no different from any other power the district court judge has to set the parameters of custodial time.


Finally, anticipating that the issue would come up in a child support calculation or modification, the general assembly has made it clear that the amount of time electronic communication is used shall not be a factor in calculating child support. Likewise, the amount of electronic communication may not be used to justify or support relocation by the custodial parent out of the immediate area or the State.


__________________


Wake County family law attorney Scott Allen handles custody and child support 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: , , , , , , , , , , , , , , , , , , , , ,  

	

		


				
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.









		

		
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Divorce from Bed and Board
 
		
				

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


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


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


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


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


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


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Family law attorney Scott Allen has litigated divorce from bed and board cases and has over seventeen years of experience.  If you have questions or need assistance call him at (919) 863-4183 or email at sallen@allenspence.com.


 


 

		

		
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