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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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Arbitration: Family Law’s Best Kept Secret (Part 1 of 2)

Arbitration: Family Law’s Best Kept Secret (Part 1 of 2)

Arbitration: Family Law’s Best Kept Secret (Part 1 of 2) Court is slow, public, costly and often hostile. There are many reasons that litigation is rarely a Plan A, especially in family law cases. There are too few judges, and too many cases. The trend in recent years is for the over-burdened court system to encourage people to try alternatives, such as arbitration.  It isn’t at all unusual for a case to take at least a year or more. The NC Family Law Arbitration Act states “It is the policy of this State to . . .  provide for arbitration as an efficient and speedy means of resolving these disputes . . .”[1] This article is part 1 of 2 on the topic of arbitration. What Is Family Law Arbitration? Arbitration is one form of alternative dispute resolution (ADR), meaning it is an alternative to the traditional process of court to settle disputes. ADR can be used only if both parties agree to use it. Unlike other types of ADR such as mediation or collaborative family law, when parties ultimately decide whether to settle their case, those who choose arbitration hire a third party who makes the decision for them as a judge would. Courts enforce written agreements to arbitrate if a party tries to back out of it. If a lawsuit is already underway, parties can still agree to use arbitration. In contrast to a trial in the courtroom, parties who choose arbitration usually hold the proceedings in an office of one of the attorneys. What Issues Can You Arbitrate? All “issues arising from a marital separation or divorce, except for the divorce itself” can be submitted to an arbitrator.[1] This includes alimony, child custody and support, and equitable distribution of marital property. Even though the arbitrator can rule on custody and child support, the court always has the final say if a parent later files a motion with the court. Disputes about changing child support or alimony can also be arbitrated. In fact, future spouses can even agree to participate in family law arbitration before they get married except for child custody and support and the divorce itself.[2]  The divorce in our state requires only a one year separation and it is extremely rare for that to be contested. Technically, it requires a lawsuit even if it is uncontested.  Arbitrators Arbitrators are typically chosen by both parties,...

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The Life Span of a Typical Case in Pitt County

The Life Span of a Typical Case in Pitt County

The Life Span of a Typical Case in Pitt County Although the term “typical case” is a misnomer, there are certain goals to be met as you wind your way through the local court process. I say goals because the judge has the discretion to adjust the times as may be necessary in each unique case. Life is messy and court is messier, sometimes not fitting into a specific timeline. We’re fortunate to have an official Family Court in Pitt County, staffed with three individuals. They keep the process moving along, by means of local court rules, the development of certain standardized forms to use in routine administrative matters and expedited communication with the judges concerning the most efficient way to handle issues that crop up as the case moves forward. The court expects the case to be resolved within a year if possible. Phase One: File the Lawsuit A family law case is filed at the courthouse by a Complaint, followed by an Answer and Counterclaims in response, and other filings. This process of putting the court and the other party on notice of what relief each party seeks can take up to 6 months after the case is filed. In the meantime, the court might hold hearings on temporary (until the case is finished) child custody, child support or alimony within 2 months after the case is filed. The parties might also choose to use discovery, which might require a deposition, paperwork to be exchanged, or written answers to specific questions by the other party. Discovery by one or both parties can easily take 2-3 months. The party who files for equitable distribution, the division of marital assets, first must complete a very detailed listing of assets and debts called an EDIA, and the other party then files his or her version. This process takes at least 4 months. Phase Two: Negotiation and Mediation Although clients usually know what property and debt there is, and the income of each party, the attorneys don’t really know until he or she reviews the actual evidence (the tax returns, pay statements, self-employment, etc.). Once the attorneys have a general idea of the scope of the marital estate and what the actual disputes are, they can each then decide the best strategy to use. Another fundamental task is to figure out whether the parties already agree on certain matters, such as...

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