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Meet Our New Attorney Lindsey Weaver Alday

Posted by on Oct 19, 2018 in Blog | 0 comments

  Meet Lindsey Weaver Alday  Personal Injury Attorney           Lindsey Weaver Alday was born in Farmington, New Mexico. Her father’s occupation as an engineer brought her family to various small towns across the United States including Gillette, Wyoming; Plymouth, North Carolina and finally Bear Grass, North Carolina. Although she came from afar, Lindsey is proud that in 1989 her family roots were planted in Bear Grass, North Carolina where she graduated from Bear Grass High School in 2003.             Lindsey was on the East Carolina University varsity tennis team and received honors in Chemistry during her first undergraduate year. She then transferred to University of North Carolina – Chapel Hill where she majored in Philosophy and graduated in 2007. She attended law school in Bloomington, Indiana at the Indiana University Maurer School of Law where she graduated cum laude in 2010.          After graduating, she returned to eastern North Carolina to practice personal injury law.Lindsey has many active interests including horseback riding, tennis and volleyball. She met her husband, Alex Alday (who was also born afar in Manila, Philippines) while playing club volleyball here in Greenville. They soon married and raise their three beautiful young children, one little girl and two twin toddler boys in Winterville. Personal Injury Practice           Lindsey is committed to serving her eastern North Carolina community. She has a passion for making insurance companies pay fair compensation to those injured in accidents. She believes insurance premiums are paid not to increase the profits of the insurance company, but to compensate people who are injured. She has experience in all aspects of litigation including negotiations, depositions, hearings, mediations, arbitrations and cases tried to jury verdict. Over her five years of personal injury practice, she recovered millions of dollars on behalf of her clients. Lindsey’s career goals are to continue to build relationships with satisfied clients by maintaining integrity and honesty throughout the representation.  Education ♦   University of North Carolina – Chapel Hill, BA Philosophy & minor in Chemistry ♦   Indiana University – Maurer School of Law, JD 2010, cum laude Professional and Community Affiliations ♦    North Carolina Advocates for Justice – Auto Torts Section ♦    Beaufort County Bar Association (President 2014) ♦    Pitt County Bar Association ♦    North Carolina State Bar  ♦    Blind Center of North Carolina (Executive Board 2013-2015)            ...

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Are you an attorney looking for your next career opportunity?

Posted by on Oct 12, 2018 in Blog | 0 comments

Are you an attorney looking for your next career opportunity?

Are you an attorney looking for your next career opportunity? Click here for more information.      ...

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Standing: Who Can and Can’t File for Child Custody

Posted by on Oct 7, 2018 in Blog, Child custody, Court | 0 comments

Standing: Who Can and Can’t File for Child Custody

Standing: Who Can and Can’t File for Child Custody The ability to file a legitimate lawsuit for child custody is extremely limited. A person must have “standing” to file, which “relates . . . to the right of the party to have the court adjudicate a particular dispute.”[1] You must have some vested interest in something before you can even ask the court to rule on the controversy. Which Parents Can File? Parents automatically have standing to file for custody against each other because they both have equal constitutional right to the care and custody of their child. They have equal rights to their child unless there is a court order or they have a custody agreement. However, our statutes forbid anyone who is convicted of the following crimes, and which resulted in the conception of the minor child, from filing a child custody claim: first-degree forcible rape, second-degree forcible rape, statutory rape of a child by an adult or first-degree statutory rape. [2] Which Non-Parents Can File? When non-parents have custody, they are usually family-members because they are likely to see the child regularly, care for the child or have a strong bond with the child. It has little to do with which relative asks for custody. Instead, it has everything to do with the behavior of the parents. A non-parent only has standing to file for custody in the event that both parents are unfit or have taken actions that are inconsistent with their constitutional right to the care and custody of their child. This standard is the same as any non-parent. This even applies to grandparents who cannot sue for custody merely by virtue of their status as grandparents, although they may seek visitation in limited circumstances. Who Else Has Standing to File? Proving that the parents are unfit or that they have acted inconsistently with their rights is a huge hurdle. Constitutional rights protect parents who are merely adequate, or parents who don’t do a good job of parenting. But if the non-parent proves the parents are unfit or behaved inconsistently with their rights, our statutes set out a very broad list of potential custodians: “Any . . . other person, . . . claiming the right to custody . . . may institute a . . . proceeding for the custody of such child. . .” [2] But the non-parent cannot be a stranger to the child. He or she must have a relationship with the child that’s in the nature of a parent and child. These aren’t just magic words. To have standing, that non-parent must truly prove why the relationship is in the nature of parent and child, that they have bonded with the child. The statute also authorizes an “agency, organization or institution” to seek custody when authorized by law. This includes the NC Department of Social Services/Child Protective Services. [2] [1] Bunch v. Britton, 802 S.E.2d 462 (2017). [2] NC Gen. Stat. §50-13.1. Laws change. This article is current as of 2018....

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What is Marital Property in North Carolina?

Posted by on Sep 29, 2018 in Blog, Equitable Distribution of Marital Property and Debt, Estate Planning and Asset Protection, Family Law | 0 comments

What is Marital Property in North Carolina?

What is Marital Property in North Carolina? Before 1981, our state had traditional title ownership. This meant that the assets would be awarded to the person in whose name they were owned if a couple divorced. If the house or vehicle was in the husband’s name, for example, the wife received no share of the value for it. Reform: Equitable Distribution Some states have what they call community property. Instead, we use a process known as Equitable Distribution to divide marital property. After a particularly harsh result in a 1979 case that demanded reform, an equitable distribution statute was created, NC Gen. Stat. §50-20. Title ownership was fairly straight forward, but the newer process has lots or grey area. Instead of strictly using the law to simply look at the name on the deed or car title, the statute requires judges to divide property fairly (i.e., equitably) between spouses. When the court decides property is marital, it is given to (i.e., distributed to) one spouse or the other, even if his or her name is not on the title or other ownership title. Equity gives the judge discretion to award assets as he or she sees fit, so long as it is within the terms of the law. The law requires judges to divide marital property equally unless one uses his or her discretion to do otherwise when there are special reasons. Marital Property Definition Marital property includes land and personal property that is acquired by either or both spouses during the marriage but before they separate. It must also be owned at the time they separate. If it meets these requirements, the property is legally presumed to be marital. In other words, if a spouse wants to show that property is his or her separate property, he or she must prove it is separate property. To beat the legal assumption that it is marital property, he or she must prove the property was acquired before they married, after they separated, or acquired by a spouse by devise (property transferred by a will) or by descent (property inherited upon death). What Counts as Property? The current statute includes just about everything with a dollar sign on it, and a few things that don’t have any real value, such as photo albums, or even a negative value such as an overdrawn bank account. Other examples you might not think of include cemetery property, frequent flyer miles, gambling or lottery winnings, pets. Traditional assets include retirement and investments, businesses, royalties, collections of any kind, furniture and household property, and jewelry, to name just a few. However, all professional licenses and business licenses which would terminate on transfer are automatically separate property.  When marital asset has a lien or debt against it, like a car note or loan, that court typically ties the debt to that particular asset. If you receive the car, you usually get it along with financial responsibility for the car note and the payments. But the court has the authority to assign it to the other spouse. The law has an odd provision about gifts one spouse gives the other while they are together. They are marital unless the gift giver specifically says he or she intends the gift to separate property when the gift is given. As you might expect, that...

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Link Share: Domestic Violence Resources – www.domesticshelters.org

Posted by on Sep 22, 2018 in Blog, Domestic Violence | 0 comments

Link Share: Domestic Violence  Resources – www.domesticshelters.org

  I don’t usually share links to my blog posts but this site has incredible resources to offer. It is not just about shelters. Anyone who is facing domestic violence should bookmark it. I’ll also add it to our web site. 23 Ways Survivors Can Collect Evidence of Abuse www.domesticshelters.org  ...

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Life or Death Decisions: Healthcare Powers of Attorney

Posted by on Sep 15, 2018 in Blog, Elder Law, Estate Planning and Asset Protection | 0 comments

Life or Death Decisions: Healthcare Powers of Attorney

Life or Death Decisions: Healthcare Powers of Attorney By Amy A. Edwards Using a Healthcare Power of Attorney (HCPOA), you may designate an agent to make medical decisions for you if you are unable to do so. You must be legally competent to sign the HCPOA, but it remains in effect even if you later become legally incompetent. When is the HCPOA Triggered? The HCPOA becomes effective when an adult “lacks sufficient understanding or capacity to make or communicate decisions relating to [his or her] health care.” [1] You can choose the physician(s) that you trust to determine whether you are unable to make or communicate your healthcare decisions. The Agent’s Authority Your Health Care Agent makes decisions based on what you direct in your HCPOA. The default is to allow your agent to make any and all medical decisions for you. But it is your job to set any limits, restrictions, requirements or special conditions. Like any fiduciary, a trusted person given the ability to act on someone’s behalf, the agent must act in good faith when carrying out your instructions. Setting Limits in Your HCPOA General Health Care Decisions. Choose whether your agent has access to your medical records, can hire and fire medical providers, and the right to place you in, or release you from, a hospital or other facility, such as assisted living or nursing home. Mental Health Care. Authorize or prevent certain mental health treatment, such as psychoactive medications or shock treatment. Consider whether the agent can admit you to, or keep you in, a mental health facility, and if so, your preferred facility. The state can always keep you in a facility based on civil commitment laws, for example danger to yourself or others. Life Prolonging Measures. This is your right to a natural death. [2] Choose whether to allow or withhold life prolonging measures, such as a mechanical ventilator, artificial nutrition (i.e., feeding tube) or artificial hydration. Most people want “reasonable steps to keep me as clean, comfortable, and free of pain as possible so that my dignity is maintained, even though this care may hasten my death.” You can say that some/no life prolonging measures will be given in the following situations, described in that statute: An incurable or irreversible condition that will result in your death within a relatively short period of time; or You become unconscious and, to a high degree of medical certainty, will never regain consciousness; or You suffer from advanced dementia or any other condition resulting in the substantial loss of cognitive ability and that loss, to a high degree of medical certainty, is not reversible. Matters of Death. If you don’t already have valid arrangements when you die, the agent can request an autopsy or even dispose of your remains (i.e., cremated or buried). You may or may not want to donate any needed organs or parts, or to donate your body. See the NC Donor Registry for information about donating. Adding Things to Your HCPOA Add what’s important to you. You can identify welcomed visitors at any facility where you might be. Naming a legal guardian to care for you if you are unable to do so might avoid litigation among family members about who should serve, and whether to require bond. How Long is the HCPOA Effective? It ends when you revoke it or die, unless you authorize him or her to do other tasks related...

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New: Links For Senior Citizen Resources

Posted by on Sep 14, 2018 in Blog, Elder Law, Elder Law, Estate Planning and Asset Protection, Resources | 0 comments

New: Links For Senior Citizen Resources

Links For Senior Citizen Resources Great Overview Sites: Good starting point and overview is the Senior Citizens Handbook: Laws and Programs Affecting Senior Citizens in NC (The Young Lawyers Division of the NC Bar Association)  See also the National Caregivers Library Other Good Sites: • AARP (American Association of Retired Persons)  • See our law firm Pinterest board for caregiving • Tips For Extended or Frequent Hospital Visits • Eldercare Directory of Federal Gov’t Programs for Seniors, including reverse mortgages • Seniors Health Insurance Information Program (SHIP) for NC • Social Security Medicare Benefits • Social Security Retirement Benefits • Library of Congress Resources for Senior Citizens and Their Families • Pitt County Counsil on Aging Services – and Pitt County “Resource Guide For Older Adults“ • NC Department of Justice: Help for ID theft • NC Dept. of Aging and Adult Services Assistance (scroll to the...

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The Trial: A Chaotic Experience

Posted by on Aug 28, 2018 in Blog, Court, Family Law | 0 comments

The Trial: A Chaotic Experience

The Trial: A Chaotic Experience No matter how prepared you and your attorney are, the days before a trial are frantic and stressful. A good case can be like a work of art. At first glance, it can look flawless but when you stand back and tilt your head, there are always a few more minor adjustments to be made before it is seemingly perfect. But trials are not perfect. Nor are they a color-by-number picture with a beginning and an end brightly mapped out. Instead, trials are organic. How are Trials Organic? Trials are organic because they take on lives of their own. After the first hour or two in the courtroom, a rhythm usually develops, which can offer a little more comfort. Trials are never what you (or your attorney) expect. Perhaps they will be better or worse, but they rarely stick to the script. Human nature means life is fluid . . . and messy. Because life doesn’t have a pause button, new events are constantly taking place right up to the day of the trial. The Human Factor No two trials are the same, nor are they made up by the same cast of characters or backdrop. Besides the fear of the unknown, the parties have the pressure of court staring them in the face. Stress and tempers can flare between the plaintiff and the defendant. Last-minute blow-ups between the parties and extended family members can impact the direction of the trial too. One or both of the attorneys might be completely unaware of some major problem that just unfolded on the day before court. The script is sometimes scrapped early in the trial because of the unexpected testimony of a witness or two. In that event, your attorney must improvise, playing it by ear. The Attorney Approaching trial dates can cause people to reconsider whether they want to attempt settlement. It is common for clients and their attorneys to be in touch with the opposing party all through the late evening on the eve of court. While the attorneys are tending to last minute details of trial preparation, if their clients want to negotiate and settle the case, they might draft the settlement documents at the same time with the hope that their time has been well-spent and that the parties will sign it the next morning. Time is a luxury most attorneys don’t have. We might have two or even three trials back to back, a problem over which we have little if any control. In the meantime, preparing witnesses to testify too early means they’re more likely to forget what they discussed with the attorney, so last-minute calls to witnesses are the norm. Everyone Else It is a good idea to have friends and/or family with you in court for moral support. They have the best intentions but sometimes they insert themselves between you and your attorney, interrupting your huddle and distracting us from communicating during a quick 5-minute break. A main pet peeve judges have is the reactions of those in the courtroom. The attorneys are facing the judge at the front of the room, so they can’t see what happens behind them. There is often drama in the courtroom in family law cases. Loved ones sometimes roll their eyes, huff, shake...

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What Do All Those Child Custody Labels Really Mean in NC?

Posted by on Aug 19, 2018 in Blog, Child custody, Child support, Family Law | 0 comments

What Do All Those Child Custody Labels  Really Mean in NC?

What Do All Those Custody Labels Really Mean? Physical Custody By Amy A. Edwards  See also – Legal Custody Physical Custody In this article, we focus on physical custody and visitation.Our state deems physical custody to mean “the physical care and supervision of a child.” NC Gen. Stat. §50A-102(14). The NC Child Support Guidelines identify primary physical custody as the custody a parent has when he or she spends 243 overnight visits per year with that child. The other parent has secondary physical custody because he or she has 122 or fewer overnights. In that case, child support is the same amount no matter what the custody schedule is. But if a parent has 123 or more overnight visits per year, a different calculation is used. Depending on the exact number of overnights per year, the child support obligation changes on a per-day basis. Physical or Legal Custody? The Guidelines are careful to note that primary physical custody is determined without regard to whether a parent has primary, shared, or joint legal custody (decision-making custody), which is the right to make significant long-term decisions, such as a child’s religious training or the school a child will attend. Contrast that with physical custody, which involves the day-to-day decision-making such as what bed-time is best or how much time a child may spend using social media on a school night. Visitation With a Child Our state fails to clearly define visitation, stating that: Unless a contrary intent is clear, the word custody shall be deemed to include custody or visitation or both. The Court of Appeals wrote that “Visitation privileges are but a lesser degree of custody. Thus . . . the word custody . . . was intended to encompass visitation rights as well as general custody.” NC Gen. Stat. § 50-13.2(b1) But the statute specifies who cannot have visitation. If a person conceived a child by acts of various sexual assault laws, he is not entitled to visitation rights. On the other hand, grandparents may file a case visitation, not custody of any sort. However, they may seek visitation only if there is an on-going custody battle already pending in court. This avoids the significant stress and cost of litigation which could otherwise be inflicted upon the parents by a third party. What About Technology?  Judges in North Carolina may award “electronic communication” with a parent. To allow a fluid and meaning as technology changes, the law envisions “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.” However, the statute is quick to add that these communications “may be used to supplement visitation . . . but . . . may not be used as a replacement or substitution for custody or visitation.” Amy A. Edwards is a family law attorney in Greenville, NC, certified by the NC State Bar Board of Legal Specialization as a Family Law Specialist, and is licensed only in NC. Laws change. This article is current as of 2018. www.AmyEdwardsFamilyLaw.com©...

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Is a 529 College Savings Plan a Gift to a Child or Marital Property?

Posted by on Aug 9, 2018 in Blog, Child support, Equitable Distribution of Marital Property and Debt | 0 comments

Is a 529 College Savings Plan a Gift to a Child or Marital Property?

Is a 529 College Savings Plan a Gift to a Child or Marital Property? By Amy A. Edwards Yesterday, the NC Court of Appeals addressed this question in Berens v. Berens. This was a case of first impression, meaning our courts have not yet made any decision on this subject. The Court defines 529 plan as “investment programs permit parents to set aside money for their children’s college expenses under tax-favorable conditions.” In the Berens case, the parents funded several 529 plans for their children while they were married and before they separated. The First Trial: Marital Property The lower court said the funds in the plans were marital property, and then awarded them to Mom as marital assets. She disagreed with that, and appealed the case, arguing that the money invested in the plans were gifts to each child, not marital property. And therefore, the court had no jurisdiction over the plans because they were not marital property. The Court of Appeals disagreed with her. The Appeal: Marital Property In this particular case, the Court of Appeals said the funds were not gifts to the children because they were all in Mom’s name alone. Besides the intent to give the gift to someone, a gift is only a gift if it is actually given to someone. Here, Mom failed to give a gift because no child was a named owner. Had the plans been gifts, each child would’ve had “all right, title, and control over the property.” Just because a 529 plan gives an owner a special tax benefit doesn’t mean it changes ownership. Although each child was a beneficiary, the plans were still owned by Mom. Therefore, she had the ability to spend the funds in any way see saw fit.  Amy A. Edwards is a family law attorney in Greenville, NC, certified by the NC State Bar Board of Legal Specialization as a Family Law Specialist, and is licensed only in NC. Laws change. This article is current as of 2018. www.AmyEdwardsFamilyLaw.com ©...

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