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

Posted by on Aug 6, 2017 in ADR - Alternative dispute resolution, Blog, Family Law | 0 comments

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 agree which arbitrator to use. High asset cases are especially well suited to the process because in our state, they can rest assured the family law arbitrator is a highly qualified and skilled decision-maker with years of experience working with complex matters. Parties can agree to use standard procedural and evidence rules used by the court, including the routine administrative events, or they can be informal and agree to certain rules they choose. They can also tailor the rules to fit their specific case. Benefit #5: Creativity Court is a “one size fits all” process, with judges using the same laws in every case whether the law is good, bad or otherwise. For instance, NC judge is legally required to treat a pet as any other marital property, like a couch or a truck. Parties might decide that the arbitrator should award custody of the pet based on what is...

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Is My Attorney Friends with My Ex’s Attorney?

Posted by on Jul 23, 2017 in Blog, Court, Working with your lawyer | 0 comments

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 that doesn’t mean the lawyers have to needlessly inflame an already tense family situations, especially when children are involved. Seeing your attorney shake hands with the other attorney, or make small talk, is not a bad...

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How Does Child Support Enforcement Work in NC?

Posted by on Jul 14, 2017 in Blog, Child support, Court | 0 comments

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 automatically paid through the parent’s employer. Another effective method of enforcing child support orders is a motion to hold a parent in contempt of court. If the court rules that the parent is in contempt of court for failure to pay support, the judge has legal authority to incarcerate him or her until the outstanding amount of support is paid. If a parent receives alimony, CSE will enforce it as well. Special Authority Because CSE is part of a government agency, they have a few exclusive benefits. For instance, employers are legally required to file documents with the government for each new employee they hire. Based in part on that information, which includes the parent’s social security number, CSE offers a “parental locator service.” They can likely find the parent to serve him or her with a summons or motion, and find records of the parent’s income and assets. CSE can intercept a...

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

Posted by on Jun 14, 2017 in ADR - Alternative dispute resolution, Blog, Family Law, Privacy | 0 comments

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, but if necessary, the court will appoint one if the parties can’t agree on who should arbitrate. The usual custom is to select the arbitrator certified by the North Carolina chapter of the AAML [3]. The parties usually share the cost of the arbitrator but they are free to choose another arrangement. Although they aren’t judges, arbitrators have the authority to make a ruling on a case, as does a judge. They can swear in witnesses and issue subpoenas to witnesses but they can’t hold someone in contempt of court for disobeying a court order, nor can they send someone to jail. The court reserves the ultimate authority to oversee those matters or the task of imposing sanctions (often financial penalties) if parties refuse to provide documents or fail to comply with other duties in a lawsuit. What Is the End Result? The arbitrator’s written decision is called an award....

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The Life Span of a Typical Case in Pitt County

Posted by on Jun 4, 2017 in Alimony, Blog, Child custody, Child support, Court, Family Law | 0 comments

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 listing the residence for sale and dividing the proceeds.  When a custody case is filed, parents are automatically required to participate in child custody mediation. If they are successful, parents can expect the court to finalize any custody agreement within 2 to 5 months after the case is filed. Our local court rules also require the parties to use financial mediation for all other matters, such as alimony and equitable distribution, before they are given a trial date. The goal is to complete mediation within 7 months.  Phase Three: Launch Sequence Activated If there is no agreement after mediation, the cost begins to skyrocket because court is the only option unless the parties choose to use arbitration. There is lots of expensive “busywork” and trial preparation that must take place.  For example, in equitable distribution cases, within 7 months after the case is filed, the attorneys for the parties prepare a...

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The History of Moms and Child Custody Laws in NC

Posted by on May 26, 2017 in Blog, Child custody, Family Law | 0 comments

The History of Moms and Child Custody Laws in NC

The History of Moms and Child Custody Laws in NC By Amy A. Edwards The subject of whether moms have some advantage in child custody cases is a much-debated topic among family law attorneys, as well as the parents who later become clients in child custody battles. The U.S. Census Bureau records indicate that only about 17% (1 in 6) of the custodial parents are fathers.[1]  Why does that happen? There isn’t a simple answer. But a brief history of the child custody laws in North Carolina gives us a context, telling us how we got here in the first place. Where It All Began: Tender Years Doctrine Imported from England, our courts used what was called the “Tender Years Doctrine” in child custody cases. It was a built-in default rule called a legal presumption, meaning the mother was always presumed to be the most appropriate parent to have custody unless there was a reason justifying otherwise. The NC Supreme Court in 1973[2] defined it as follows:   “It is universally recognized that the mother is the natural custodian of her young. . . If she is a fit and proper person to have the custody of the children, other things being equal, the mother should be given their custody, in order, that the children . . . may have the advantage and benefit of a mother’s love and devotion for which there is no substitute. A mother’s care and influence is regarded as particularly important for children of tender age and girls of even more mature years.” Marital Status Marital status between the parents did (and still does) matter. Historically, an unmarried mother had exclusive sole custody, including whether to place a child for adoption. If an unmarried mother decided to place the child for adoption, the father generally had no rights because there was no “legal father.” Although that is not currently the law in adoption cases, there are still significant differences between the rights and obligations of married fathers and unmarried fathers. Current adoption laws for unmarried fathers remain controversial among those in the legal profession. An excellent discussion of this topic is found in Rosero v. Blake.[3] Where Did the Tender Years Doctrine Lead? In 1977, the state abolished the Tender Years Doctrine by statute.[4] Instead of defining custody as a right exercised by one parent over another, the new statute required judges to rule based strictly on what is in the best interest of a child. This removed the default rule favoring mothers, and it holds true today. However, as recently as 2006, the NC Court of Appeals overturned a lower court ruling because the following language in a court order was deemed to be the Tender Years Doctrine: “the Court takes judicial, personal notice of the natural bond that develops between infants and a mother, especially when the mother breast-feeds the infant.”[5] Where Are We Now? The “best interest of the child” law remains. It currently states that “there is no presumption as to who will . . . better promote the interest and welfare of the child.” It also requires the court to consider joint custody if either parent requests it.[6] In 2015, the North Carolina Legislature added a brand new statute to the existing ones, An Act to Promote the Encouragement of...

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Man’s (and Woman’s) Best Friend

Posted by on Apr 18, 2017 in Blog, Estate Planning | 0 comments

Man’s (and Woman’s) Best Friend

Guest Feature: Man’s (and Woman’s) Best Friend By Jennifer Jackson Bell * Whoever said “diamonds are a girl’s best friend” obviously never owned a pet. Many people, myself included, think of their pets as their fur-babies or fur-children and dote on them as such. There is no doubt that pets hold a special place in our hearts but they also hold a special place in our wallets as well. Owning and caring for a pet takes love, and time, as well as financial responsibility. After we are no longer capable of caring for our beloved fur-children we want to make sure they are taken care of, as we would our human children. However there is one major problem we face: pets are seen as property in the eyes of the state, especially when dealing with wills and probate. This means that you cannot leave money or any type of property to your pet after your death. The only way to ensure that your fur-child is doted on and spoiled as much as he/she was when you cared for him/her is to create a Pet Trust. What Exactly is a Pet Trust? A pet trust is a legally sanctioned arrangement providing for the care and maintenance of one or more companion animals (or fur-children) in the event of a grantor’s (owner’s) disability or death. A pet trust is created like every other form of trust, with a Grantor (the owner), Grantee and Trustee (the pet). Typically, you will appoint someone you trust first and foremost and whom you would want to love and care for your pet after your incapability as Trustee. The trustee will hold property (cash, for example) “in trust” for the benefit of your pet(s). The trust will continue for the life of the pet or until the death of the last living pet included in the trust. Why Should I Have One? Trusts are legally enforceable arrangements. A Pet Trust ensures that your wishes for your fur-children will be carried out, and any and all directions regarding your fur-children will be followed. A trust can be very specific.  For example, if your cat only likes a particular brand of food or your dog looks forward to daily romps in the park, this can be specified in a trust agreement. If you want your pet to visit the veterinarian four times a year, this can also be included. Since as pet owners, we know the particular habits of our companion animals better than anyone else, we can describe the kind of care our fur-children should have and list the person(s) who would be willing to provide that care. Establishing a Pet Trust gives owners peace of mind. By establishing a Pet Trust an owner can ensure their beloved animals will be given the care and resources they are accustomed to even when the owner is no longer capable of doing so herself. Without a pet trust, sometimes animals end up at the local shelter or even on the streets. Without a solid plan to care for your pets you may be risking their lives or their care. * Ms. Bell is a third-year law student at the Norman Adrian Wiggins School of Law at Campbell University. She is originally from Eastern North Carolina and intends to practice law in the area...

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Is Your Custody Order Out of Date?

Posted by on Apr 18, 2017 in Blog, Child custody, Court, Family Law | 0 comments

Is Your Custody Order Out of Date?

Is Your Custody Order Out of Date? When it comes to custody cases, most parents usually either sign a separation agreement, sign a consent order (order by agreement) or they go to court and have an order entered by the court after the trial. The drama dies down and hopefully life goes back to normal, at least as normal as things can get after a dispute of this nature. Life changes. As the years pass, children grow, parents get married or remarried and maybe a few more kids are added along the way. Especially when parents are young, they become more mature. Once the threat of on-going court battle is has subsided, parents may stabilize as co-parents and begin to trust each other. The best parents simply do what needs to be done. They might not rely on the custody order after a couple of years because they develop a co-parenting routine. As Time Goes By . . . Assume you and the other parent reach an agreement about your 4 year old son. It calls for him to be with you every other weekend from Friday at 6:00 p.m. until Sunday night at 6:00 p.m., every other Wednesday night, and two weeks during the summer. For a number of reasons, when your son is 6 and starts school, both of you agree it would be in his best interest to live with you and reverse the visitation schedule. This works great for years. What’s The Problem? The problem is that the old custody order remains in effect as is unless and until it is changed, or it “expires” when a child reaches the age of 18. Now assume that your son is 11, and the other parent suddenly tells you he or she will now be going back to the court-ordered visitation schedule, and your son will be staying there full time until further notice. You rush home, dig up the custody order, blow the dust off and see that it only gives you visitation every other weekend and Wednesday nights. From that messy situation, it is obvious you have a real problem. If the order had been updated, this problem could’ve been avoided. When you no longer agree with the other parent, you risk being held in contempt of court if you fail to abide by the custody order. Ultimately, a judge has the ability to enforce the order by whatever means is necessary, including incarceration. If you suddenly need to rely on your custody order in a situation like the one described above, you aren’t protected. This often rears its ugly head when one of the parents has a new romantic relationship, remarries and/or has a new child. How Do You Update a Custody Order? In North Carolina, when both parents agree that they need a revised custody order (i.e., an “updated” order), the process is fairly straight-forward. After an attorney prepares a motion and consent order, or two lawyers negotiate about what is included in it, the parties sign it and voila, a new order is entered by the court. Sometimes, the judge requires both parents to appear briefly to tell him or her that consent is given to enter the new agreement as a court order. In our example above, not only would an updated order have clarified the living...

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Ex Parte Orders: When Will I Have My Day in Court?

Posted by on Apr 18, 2017 in Blog, Child custody, Court, Family Law | 0 comments

Ex Parte Orders: When Will I Have My Day in Court?

Ex Parte Orders: When Will I Have My Day in Court? The Courts and due process rights in the United States Constitution are built upon the right of each person to a fair trial. Fundamentally, a person who is served with a lawsuit has the right to respond in writing, by testimony and by evidence offered during the trial. Both parties may exercise the right to file motions asking the court to do something, seek documents in the possession of the other party (called discovery), and have an attorney issue a subpoena compelling a witness to testify or provide evidence to the court. The law gives each person his or her day in court. Exceptions to the General Rule While this holds true with family law cases, there are times when there is an extreme emergency serious enough to warrant the court entering a temporary order based only on one side of the story. If you’ve been in court maybe you’ve heard the term ex parte but no one ever explained it. It is a Latin term that means something takes place based on only one side of the story. In this context, it means the court makes a ruling without the other party being present. EPOs are generally disfavored in court. The judge must weigh the seriousness of the allegations and decide whether they justify delaying the due process rights of the other party. Judges take the facts of each individual situation into account on a case by case basis. There is no “one size fits all” approach to deciding whether an EPO is justified. For example, when a spouse or other family member attempts to cause bodily injury to the other, or intentionally causes bodily injury to him or her, the court might enter an ex parte order (EPO) in the form of a domestic violence order. When the judge grants the EPO, it is served on the other party who must obey the order even though he or she didn’t have an opportunity to tell his or her version of what happened. But, he or she will be entitled to his or her day in court shortly. How Does the Ex Parte Order Play Out? If someone is served with an ex parte order, time is of the essence. An EPO is usually served with several documents, and includes notice of the date and time for the trial. People are often upset because there is a hearing date of only about ten days from the date they were served. Ironically, a short time before having a trial is meant to help the person who gets served with an EPO. The policy of the law is to give that person the opportunity to be heard in court as soon as possible. At the hearing, both sides are given the chance to tell the judge what happened and offer any evidence. For example, in a domestic violence case, the person against whom an EPO was entered might offer testimony about what happened and a photo or e-mail explaining that version of what happened. In family law cases, EPOs might be entered in child custody cases or even in certain equitable distribution cases when one party begins liquidating marital assets. Amy A. Edwards is a family law attorney in Greenville, NC, certified by the NC State Bar Board of Legal Specialization as...

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What Do You Want Out of the Divorce Process?

Posted by on Apr 18, 2017 in Blog, Family Law, Working with your lawyer | 0 comments

What Do You Want Out of the Divorce Process?

What Do You Want Out of the Divorce Process?  People don’t live their lives expecting litigation, a terrible separation or the other parent taking their children away from them. Although it is not always the case, people often find themselves overwhelmed by unexpected circumstances by the time they make it to the attorney’s office. It is not uncommon for a client to schedule an appointment after recently discovering the other spouse (or the other parent) has been making plans to separate for some time. Almost all cases begin in the “triage” stage, when someone’s day to day life has just been turned upside down. The “emergency phase” of a case usually involves necessary arrangements for the short-term, such as where to live, what to do about immediate financial support, and when a parent has visitation with a child. Once that emergency phase of the case settles down, perhaps there is a temporary agreement or temporary court order in place. What Happens Now? After the emergency phase of a case, the real work begins. Take inventory of what matters in your life. Clients who seek counseling or therapy tend to uncover important goals, especially when they’ve made accommodations for their mates over many years. Turmoil can provide new opportunities. You might decide to return to school or consider relocating to another city or state. Or, you want to make healthy long term co-parenting a priority not only for you children but your future grandchildren so your family won’t have to endure drama at events such as graduations and weddings. A career change might also be an option based on your new situation. Talk To Your Attorney Like any other relationships, attorney-client relationships involve all kinds of personalities. Some clients have clear objectives and take an active role in their case, others don’t. By default, your attorney should be advocating for as much of the marital property as possible, and if you are a parent, the goal is to get as much time with the child or children as possible. That’s obvious. But there’s so much more than that. Make sure to share your personal goals with your attorney if he or she doesn’t specifically ask. Although our job is to advocate for you, we will do a better job of advocating if you clearly express your plans. For example, we could try to structure alimony to coincide with the completion of college, or maybe it makes sense for one parent to remain in the family home until the youngest child reaches eighteen. If you are considering a new job one hundred and fifty miles away, we should take that into account when we analyze the visitation time with the children and the calculation of child support. After all, it is your life and although we advocate for you, the decisions are yours to make.   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 April 2017. www.AmyEdwardsFamilyLaw.com © 2017....

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