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What Exactly is an Estate Plan?

What Exactly is an Estate Plan?

What Exactly is an Estate Plan? Stated in the simplest terms, estate planning is the practice of preparing for a person’s eventual demise. As morbid as it may seem to think about your death, planning for the end or rather what will happen to your belongings or loved ones afterwards is an important yet most-often complicated task. This is why hiring an Estate Planning attorney is paramount and also, very beneficial. An attorney will be knowledgeable of the current tax law governing gifts, estates and transfers. With the help of an attorney you can minimize the taxes your loved ones will face after your death. A more inclusive definition of Estate Planning is the process of anticipating and arranging, during a person’s life, for the management and disposal of that person’s estate during their life and at and after their death. An estate is the worth of a person. In essence it is the sum of a person’s assets minus any liabilities. Assets can include: real estate, jewelry, cash, vehicles, equipment, antiques, life insurance policies, etc. Basically an asset is anything of value. Liabilities can include: credit card debts, mortgages, tax debt, child support, etc. Liabilities are things for which you are responsible, principally financial obligations. Leaving your loved ones with items from your estate is more complex than it may seem, especially when it comes to the applicable tax law. You may be thinking, but I don’t need an estate plan, I’m not rich! Don’t make the mistake of overlooking your assets because you don’t think you have much or any for that matter. An estate plan is an important financial document for everyone to have. With only a few exceptions, everyone has an estate. If you own something of value and you would like to leave it to someone or some place after your death, you have an estate. And whether you know it or not, you also have an estate plan, but one you had no control over or decisions about. North Carolina has made one for you; actually they have one for every person that does not put an estate plan into place of their own. When a person dies without an estate plan, probate governs how their estate will be disbursed. Probate is a court-supervised process that gathers a person’s assets and distributes them to creditors first then inheritors in a precise manner based...

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All About Adultery in North Carolina (Part 1 of 2)

All About Adultery in North Carolina (Part 1 of 2)

All About Adultery in North Carolina (Part 1 of 2)   By Amy A. Edwards   Merriam Webster defines adulterate as a verb, an act “to corrupt, debase, or make impure by the addition of a foreign or inferior substance or element.” North Carolina alimony laws don’t call it adultery. Instead, adultery as used in alimony cases is a form of marital misconduct called “illicit sexual behavior.” The definition is “acts of sexual or deviate sexual intercourse, deviate sexual acts, or sexual acts defined in NC Gen. Stat. §14-27.20(4), voluntarily engaged in by a spouse with someone other than the other spouse.” NC Gen. Stat. §50-16.3A.   People have argued about which acts between the spouse and third party meet the definition of illicit sexual behavior. In 2011, a wife unsuccessfully argued that her behavior didn’t meet the standard of illicit sexual behavior because the man she had been with wasn’t able to complete the act they had started but were unable to finish. Romulus v. Romulus (2011). The Romulus case gives an exhaustive list of definitions (starting on page 47) of various acts.   Adultery and Alimony   In North Carolina, divorce is a “no fault” process based on a full year of separation between a husband and wife. However, we strongly cling to fault in our alimony laws. For many reasons, alimony can be awarded based only on finances, meaning incomes and reasonable living expenses. But if the supporting spouse commits adultery, he or she automatically has to pay alimony. The reverse is also true. The dependent spouse automatically loses alimony if he or she cheats. Other types of marital fault are only factors the judge must consider, and they don’t demand a particular result as adultery does. If both spouses have cheated, the judge then denies or awards alimony in his or her discretion “after consideration of all of the circumstances.” NC Gen. Stat. §50-16.3A.   How Do You Prove Adultery?   Adultery is almost always a circumstantial case. After all, most spouses aren’t advertising their infidelity. It is rarely proven by direct evidence. Therefore, our law resorts to a standard called the “inclination and opportunity doctrine.” Owens v. Owens, 28 NC App 713 (1976). This means the spouse alleging adultery must prove two things. First, was there an opportunity for the spouse and third party to be together in privacy?  Second, if they had the opportunity to be together, were they inclined (likely) to have sex?   Like any...

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Arbitration: Family Law’s Best Kept Secret (Part 2 of 2)

Arbitration: Family Law’s Best Kept Secret (Part 2 of 2)

Arbitration: Family Law’s Best Kept Secret (Part 2 of 2) The first article of two on this subject is about what arbitration is and how it works. This article focuses on five main benefits of arbitration compared with traditional court. Benefit #1: Quicker Than Court The parties choose a date based on their schedules and avoid the hassle of court continuances, the judge’s schedule, the docket list and a host of factors beyond their control. Perhaps you want to take 30 minutes breaks for lunch instead of 90 minutes, or start earlier than court or stay later, which is not likely with court. Instead of a year in court, parties can schedule a session in a couple of months, based on their schedules. If the “housekeeping” administrative hearings are necessary, the arbitrator and attorneys can conference call instead of going to the courthouse and waiting for the judge to reach the case that day. Benefit #2: Privacy  Anyone has the right to be present in court, access the written court file and even request an audio recording of a trial. As you testify, the audience usually includes close friends for moral support. Other times, family members, including parents and adult children sit and listen. Testimony might include matters such as your sex life or other “dirty laundry” if your case involves marital fault. It will generally include testimony about (and court files with) your income and credit card debts. Arbitration usually happens in an office of one of the attorneys instead of the court room. Parties can also agree to exclude everyone except for those necessary to testify or otherwise.  Benefit #3: Relaxed Environment In contrast to court, with the bailiffs, the metal detector and the judge, arbitration involves an office. The proceedings are official but if someone needs a bathroom break, for example, they don’t need permission from a judge. There’s also a coffee. Although the parties can agree to record the hearing, they don’t have to record them.  In fact, they can agree to gives the arbitrator their exhibits, read affidavits (signed under oath) and rule without even holding a hearing/trial. Court doesn’t usually offer an express lane for cases.  Benefit #4: Make Your Own Rules You can’t choose which judges you get, but you can choose the arbitrator you want. If the agreement to arbitrate is in effect, the court will appoint one if they can’t...

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Is My Attorney Friends with My Ex’s Attorney?

Is My Attorney Friends with My Ex’s Attorney?

Is My Attorney Friends with My Ex’s Attorney? By Amy A. Edwards When I was a law student, I remember tagging along for a trial and being shocked that my mentor was talking and joking with the attorney who represented the opposing party before court. In my mind, court was a war and the opposing party was the enemy. It wasn’t until I began trying cases myself that I had a context for that event. Lawyers by definition are zealous advocates for clients. However, clients sometimes think that means an attorney must be rude, loud and hostile. When I became a lawyer, I realized that is not the case. In fact, cordial relationships can benefit both parties. As “officers of the court” attorneys are expected to have a respect for everyone, including the opposing party. Professional relationships among attorneys are often long-term. A trend for attorneys is to choose an area of law to concentrate in, or even become a board certified specialist, as I am. As a consequence, more attorneys practice only family law, spending years or even decades litigating or negotiating cases with each other. And a smart attorney makes efforts to keep a cordial relationship with his or her colleagues.       But more to our point, attorneys who are professional and have a basic level of respect tend to cooperate when it is necessary, even though they are deeply divided on the disputed issue. They return calls to each other and try to determine whether there are issues that can be resolved outside of the courtroom. They can actually have conversations about the case instead of just “performing.” A frank conversation before the trial could lead to a stipulation to certain things, for example, giving the judge a written agreement saying they agree to those things. Such an agreement might reduce a three day trial to two days, benefiting both parties. On the other hand, the attorneys lacking the cordial professional relationship with colleagues tend to be the same ones who drive up billable time with a big displays of bravado even when it isn’t really necessary. That often translates into a long, hard and expensive road.  When that type of attorney is in a case, I can tell my client to count on the case costing twice as much what it should cost.  There are cases that absolutely have to be litigated tooth and nail. But...

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How Does Child Support Enforcement Work in NC?

How Does Child Support Enforcement Work in NC?

How Does Child Support Enforcement Work in NC? The Child Support Enforcement (CSE) Program is managed by the NC Division of Social Services. CSE oversees almost all child support cases but they do more than enforce child support orders. If there is no child support order, they will initiate a lawsuit for it.  A case worker is assigned to each case to act as the point of contact between the parents. When parents reach an agreement in their child support case, CSE will facilitate the entry of a court order. When parents dispute the amount of child support, a judge will decide what must be paid. Parties are always free to hire private attorneys to represent them in child support cases if they choose to do so. But for a fee of $25.00 per year, a CSE attorney represents the party who is entitled to child support, kind of like a district attorney represents the state/victim in criminal case. Who Can Use CSE Services? Any parent is eligible for services, regardless of whether he or she has government assistance. Either parent can request services, not just the party who receives child support. Married parents who have separated but have not yet divorced may use CSE services. A child’s guardian or caretaker qualifies for services, as does a person who has custody of a child pursuant to a court order. For example, if a grandparent has legal custody of a grandchild, CSE will provide services. For the sake of clarity, I will refer to anyone who qualifies for CSE services as parents. What About Paternity Testing? When parents are married at the time of the child’s birth, the law automatically assumes the husband is the father.  However, when a child is born to unmarried parents and the father disputes paternity, CSE files a motion for the court to determine paternity by genetic testing. Paternity must be established before child support is properly ordered. An unmarried father may initiate services, including a request for paternity testing.  Based on the test results, or if the defendant in the child support case fails to appear in court as required, CSE will then establish paternity and child support by court order.   How Do they Enforce Child Support Orders? CSE keeps records of what is paid by a parent and what is provided to the other parent, usually by income withholding so the support will be...

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