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The Top Five Reasons a Divorce Matters in North Carolina

Posted by on Feb 15, 2018 in Alimony, Blog, divorce, Equitable Distribution of Marital Property and Debt, Estate Planning, Estate Planning and Asset Protection | 0 comments

The Top Five Reasons a Divorce Matters in North Carolina

The Top Five Reasons a Divorce Matters in North Carolina By Amy A. Edwards In North Carolina, a spouse can file a claim for divorce only a separation of at least twelve months. Besides the ability to allow someone to remarry, a divorce is important for a number of reasons. This article isn’t legal advice, and it does not cover all of the reasons. But it highlights a few examples of why someone who is served with a complaint absolutely needs to contact a lawyer immediately. Reason #1 – Marital Property Married people who separate can file a claim for equitable distribution, asking the court to divide marital property equally (instead of just relying on which name is on the title or deed). Our state creates a deadline for filing those claims, and the clock starts ticking when a divorce complaint is filed. Failure to properly file for marital property division within the correct time period means it is permanently lost. Reason #2 – Health Insurance Family plans that cover both spouses and any children change the moment a divorce decree is entered. As of that moment, a spouse is no longer “related” for purposes of a family plan because they are no longer a family member. Children of the person who provides health insurance remain on a family plan after a divorce. Reason #3 – Estate Rights Inheritance rights between spouses are completely different from those of non-spouses. This is a very complicated area of the law that can be related to whether a claim for marital property. Examples of potential rights upon the death of a spouse include an allowance of money, the right to a share of the assets if there is no will, and the right to contests a will. Designation as a spouse or former spouse can involve Social Security benefits, military benefits and other survivor’s benefits. Reason #4 – Liens Against the House Married people are sometimes protected from creditors if only one of them created a debt in his or her sole name. For example, the innocent spouse who did not sign a credit card application is usually, but not always, protected from money judgments that would otherwise become a lien against the marital residence. The moment the innocent spouse becomes an ex-spouse, this can trigger a lien against the property even if the debt (such as credit card debt) is not in his or her name and he or she never signed the application for the loan or credit card. Reason #5 – Alimony Like a claim for equitable distribution of marital property, there is a critical deadline for filing claims for temporary and permanent alimony once a divorce complaint is filed. A spouse who qualifies for alimony must immediately protect those rights. Failure to properly do so will usually mean the spouse cannot ask for financial assistance once the right to file alimony expires, even if he or she is unemployed or underemployed. Alimony is paid for the support of the spouse, and it is unrelated to child support, which is paid only for the support of...

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How a Contract Magically Becomes a Court Order: Incorporation

Posted by on Feb 6, 2018 in Blog, Court, Family Law | 0 comments

How a Contract Magically Becomes a Court Order: Incorporation

How a Contract Magically Becomes a Court Order: Incorporation  In the world of family law in North Carolina, there are three ways to address agreements: contracts, court orders and incorporation. Contracts Contracts are agreements signed by the parties, such as a separation agreement. If someone violates the contract, it is called breach of contract. A contract is enforced by a “specific performance” lawsuit, asking the court for an order requiring him or her to perform the specifics of the contract, such as signing a deed, refinancing a mortgage obligation, etc. A contract generally can’t be changed by the court. However, the court always has the authority to change anything related to child custody and support until a child is 18 years of age, regardless of what the parties set out in a contract. Court Orders Court orders are only available after a lawsuit has been filed, and they must be signed by a judge to be valid. The best part about a court order is the remedy. A party who violates the court order is subject to being held in contempt of court for failure to obey the court order. The contempt power of the court gives the judge discretion to do whatever he or she sees fit to enforce the order, depending on the circumstances presented. Although they don’t usually do so until after someone demonstrates they will remain obstinate, judges have the authority to incarcerate someone who continues to disobey court order. Orders can be registered in any state to be enforced with the full faith and credit of another state. Incorporation Our state has what is called incorporation, a special process by which a separation agreement “magically” becomes a court order once a judge signs it. But a judge cannot sign anything until there has been a lawsuit filed. Incorporation is done only by agreement, which is usually mentioned in a separation agreement. After a full year of separation has passed, either spouse can file for a divorce. When the judge signs a divorce decree, he or she also has the authority to incorporate it into the decree, permanently making it an order of the...

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Can My Underage Daughter Get an Abortion Without Me Knowing?

Posted by on Jan 21, 2018 in Blog, Family Law | 0 comments

Can My Underage Daughter Get an Abortion Without Me Knowing?

Can My Underage Daughter Get an Abortion Without Me Knowing? By Amy A. Edwards This question is equivalent to asking whether your underage daughter has the right to consent to an abortion independently of parents. Nothing in the law is absolute. The answer to this question is maybe yes, and maybe no. In North Carolina, the law on abortion is the Woman’s Right to Know Act, which defines it as: “The use or prescription of any instrument, medicine, drug, or other substance or device intentionally to terminate the pregnancy of a woman known to be pregnant.” Termination is lawful to “preserve the life or health of the child” or to “remove a dead, unborn child who died as the result of . . . natural causes . . . accidental trauma, or . . . a criminal assault on the pregnant woman or her unborn child which causes the premature termination of the pregnancy.” Abortion is legal during the first 20 weeks of pregnancy. Information and Consent of the Female A medical professional must get any woman’s voluntary and informed consent, whether she is a minor (under 18) or an adult, at least 3 days before an abortion. The professional must provide information on a number of topics to her, including information about the medical risks of both an abortion and carrying a child to term, resources and available options, including adoption, public assistance for prenatal care, childbirth, and neonatal care. She is also informed that “the father is liable to assist in the support of the child, even if the father has offered to pay for the abortion.” The law requires the state to create and maintain a web site of the information. Although there is not a certain age when a minor is capable of giving consent to an abortion, she must have the legal capacity to understand her health status and options, and be able to make decisions about them. For example, if a girl is 15 years old, does she truly understand the real consequences of being pregnant, let alone those of having an abortion? A pregnant minor cannot be forced to have an abortion. Adult Consent In the more general statutes, a minor who is not emancipated has the right to consent to certain medical treatment without a parent’s consent. Any minor may give effective consent to “medical health services for the prevention, diagnosis and treatment of . . . venereal disease . . . pregnancy . . . This section does not authorize the inducing of an abortion [or the] performance of a sterilization operation.” Pregnant minors who want an abortion must have the written consent of a parent with custody, her legal guardian or custodian, a parent who lives with her, or a grandparent she has lived with for at least 6 months. Minors and the Consent of a Judge If a pregnant minor chooses to do so, she can attempt to bypass the adult’s consent and petition the court. She may petition over the objection of the adult. “At the hearing, the court shall hear evidence relating to the emotional development, maturity, intellect, and understanding of the minor; the nature, possible consequences, and alternatives to the abortion; and any other evidence that the court may find useful in determining whether the parental consent...

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Order in the Court: The Nuts and Bolts of Court Orders

Posted by on Jan 18, 2018 in Blog, Court | 0 comments

Order in the Court: The Nuts and Bolts of Court Orders

Order in the Court: The Nuts and Bolts of Court Orders In the world of family law, orders define rights as between spouses and former spouses, as well as between parents of children. Each state has a unique definition of a court order. This article applies only to family law cases in North Carolina. How Do We Get Court Orders? The first step in obtaining a court order is filing a lawsuit, which gives the court jurisdiction and the authority to sign a court order. Temporary orders are based on a short trial of only a few hours, on a date shortly after the case is filed. These hearings can be rushed and chaotic but they’re only meant to give parties some structure until the full trial takes place. Full trials give them the opportunity for the judge to hear testimony of the parties and their witnesses, and offer more thorough exhibits. What Are the Mechanics? After a trial, judges sometimes write their own orders. This is more likely to happen with temporary orders, such as temporary child custody. Other times, judges assign the task of writing an order to one of the attorneys. After a judge signs a written order and the clerk of court files it, it is an official order. Filing means the signed order goes to the clerk of court’s office where the clerk stamps it. The special stamp shows the date and time that the order was placed in the court file, which includes all the paperwork filed in the case. What’s Included in a NC Court Order? The first part of the order is called Findings of Fact, where the judge makes a legal ruling on the disputed or contested facts, such as whether a spouse committed adultery. Next, orders typically have conclusions of Law. This is the “legaleze” part of the order, where the judge says (i.e., concludes) what the law requires based on those particular facts. The actual Order is the part most people think of when they think of an order. For example, it awards custody and includes visitation schedule, sets an amount of child support or alimony, or says who keeps marital property. Consent Orders When a lawsuit has been filed and the parties decide to settle their case without a trial, the judge will sign what is called a Consent Order. That means the parties give the judge their consent to sign and enter the order. The reality of court can cause people to reconsider settling their cases just before a trial starts. Referred to as settling at the courthouse steps, it isn’t unusual for the consent order to be hand written with pen and paper right then and there. The handwritten order is called a Memorandum of Order. It can be typed and improved upon after the hand-written order is entered, but the handwritten order is immediately valid and enforceable once it is sign by the parties and the judge. If the parties aren’t settling at the courthouse steps, the judge might schedule a date for the parties to appear in court for 5 or 10 minutes to officially give him or her permission to sign the order without a trial. These orders are typed and finalized when signed. Either way, the judges might ask the parties if they’ve read the...

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

Posted by on Dec 26, 2017 in Alimony, Blog, Family Law, Relationships, Torts | 0 comments

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

All About Adultery in North Carolina (Part 2 of 2) By Amy A. Edwards Part one of this article looked at adultery as it relates to alimony. In North Carolina, adultery can impact several legal rights, such as a legal separation, inheritance rights, criminal conversation, and even property ownership.   Adultery: Duty of Third Party to Warn Spouse of STD If a husband or wife passes a sexually transmitted disease (STD) to the other spouse as a result of his or her adultery, the innocent spouse may with a civil suit for financial damages against the man or woman who passed the STD to the husband or wife. To successfully prove a claim for negligent infliction of an STD, the victim spouse must prove the source of the STD, and that the infected person knew or should have known he or she was infected with venereal disease. Because it is foreseeable that the two spouses would have intercourse, the infected person has a legal duty to abstain from sexual contact, or at least a legal duty to warn the innocent spouse. Adultery: Criminal Conversation The term criminal conversation (CC) is somewhat misleading. Although it sounds like a crime, it is not. Instead, CC is a civil lawsuit for money damages. A married person may file a claim for CC against the third party who had sexual intercourse with his or her spouse. CC holds that third party financially accountable to the husband or wife for interference with his or her marital conjugal relationship, which is protected by law. Although the unfaithful spouse is not on the hook for financial damages, he or she generally testifies in a jury trial about the acts that took place. Alienation of affections is a completely different lawsuit that addresses alienating or stealing the spouse, regardless of whether there was sexual intercourse. CC is exclusively based on sexual intercourse. Adultery: Divorce from Bed and Board North Carolina recognizes a fault-based claim called divorce from bed and board (DBB), and one of the grounds for it is adultery. A decree for a DBB does not a “divorce” the husband and wife allowing them to remarry. It is a court decree that declares the spouses to be officially separated. This keeps a spouse from committing abandonment if he or she wants to separate. Instead, if a spouse successfully obtains a DBB, the spouse who committed adultery loses spousal rights to certain inheritance rights, including intestate succession, which is the right to inherit if the other spouse dies without a will. Also lost is the right to take an “elective share” of the deceased spouse’s estate if the deceased spouse tried to “disinherit” him or her, as well as the right to administer that spouse’s estate as an executor or executrix. Adultery: Criminal Law   Although it is almost certainly unconstitutional, one criminal statute that is still on the books makes voluntary adultery a crime. NC Gen. Stat. §14-184 is captioned Fornication and Adultery. The statute makes it a Class 2 misdemeanor “[i]f any man and woman, not being married to each other, shall lewdly and lasciviously associate, bed and cohabit together . . .” In cases for alienation of affections and criminal conversation, parties frequently used this criminal law to protect themselves from testifying. Because adultery was...

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Living With Your Lover? Better Get it in Writing

Posted by on Dec 17, 2017 in Blog, Estate Planning and Asset Protection, Family Law, Relationships | 0 comments

Living With Your Lover? Better Get it in Writing

Living With Your Lover? Better Get it in Writing By Amy A. Edwards When people marry, the law gives them numerous rights and obligations. But what happens if you aren’t married? The law treats the relationship differently, even if you have children together. If two people in a relationship purchase a home together, each might assume that having both names on the deed protects them if they later separate. But, that can create more questions than answers. This article is about joint home ownership by unmarried people in North Carolina, and includes information to discuss with an attorney before signing the offer to purchase property.  What Are the Problems? There are more than you might think. Below is a list of four main topics: ownership, finances, the relationship between you and the other co-owner, and estate planning matters, followed by potential ways to avoid these problems. Ownership Even if both parties are named in the deed, the type of ownership (and the various rights of each type of ownership) depends completely on how the deed is written. How should it be written? Do you want survivorship if the other party dies before you do? Do you want to have each person leave their share of ownership to their heirs? Are you considering a life estate? Your property rights are different if you marry before or after you buy the property in joint names. In fact, to accomplish certain ownership rights, parties must deed the property they already owned before marriage back to themselves after they marry.   Unmarried co-owners have an inconvenient method to divide or sell the property if they separate and can’t agree on what to do. They file a lawsuit called a “partition” that requires the court to appoint three commissioners, paid by the co-owners, who meet on the premises and report to the court how they think it should be divided. NC Gen. Stat. §46. Finances Who is responsible for paying the mortgage, taxes and insurance? Is there any protection for one co-owner if the other is sued and a judgment for money owed becomes a lien on the property, such as a small claims case which might have an 8% interest rate? Should one or both owners sign the promissory note for the mortgage? Is there a home equity line of credit? Can it be “frozen” until you figure out what to do? Who pays the loan and the interest? If one person pays a substantial down payment, should he or she get it back if the house is sold, even if there is no equity in the home (i.e., it is “upside down”)? If you leave the residence after you separate, will your name remain on the mortgage obligation until it is paid off? Should the house be sold if the other owner can’t refinance the mortgage into his or her sole name? The Personal Relationship   Who will move out if you decide to separate? If you are married, the law sets out a procedure for a spouse to ask that the other spouse be ordered to leave the residence. But if you are unmarried, you are on your own if you haven’t made arrangements for this in advance. After a separation, who pays the mortgage, and who has the right to remain...

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Grandparent Rights in North Carolina

Posted by on Dec 12, 2017 in Blog, Child custody, Family Law | 0 comments

Grandparent Rights in North Carolina

Grandparent Rights in North Carolina By Jennifer J. Bell Only the very best parents get promoted to Grandparents! Becoming a Grandparent is every parent’s dream, and most often a monumental time during one’s life. The Golden Age is aptly named for that time during which an individual becomes a Grandparent. Being a Grandparent means baby snuggles, toddler kisses, and adolescent adoration, all without the fuss of raising the child. All of the benefit and little to none of the burden. What could be better?! But what happens when family strife hits? Do Grandparents have any rights? Especially when it comes to their grand-babies? The answer is no, yes, and maybe. Unfortunately, Grandparents do not have a right to see or visit with their grandchildren when the family unit is intact. Under North Carolina case law, parents have the right to choose whom their children interact with, which is also the right of association guaranteed under the 1st Amendment of the U.S. Constitution. Grandparents cannot force the parents to allow them to see or spend time with their grandchildren when the children are part of a cohesive family lifestyle. Many Grandparents call it their “right” to see their grand-babies, but as sad as it is this “right” rarely exists. However, if mom or dad is ‘unfit’ to raise the child, Grandma or Grandpa may petition or sue for custody of the minor child. Although the burden for ‘unfitness’ is a tough one to meet Grandparent’s most definitely have a right to sue for custody when it is met. But what if both parents are fit, wonderful, loving parents? Then the situation becomes a bit more sticky. Grandparents may have a right to sue or petition for visitation of their grandchildren when an intact family unit becomes divided, for lack of a better word. There are certain hurdles a Grandparent would have to overcome in order to gain visitation rights. Examples include: their strong connection with the grandchild, frequency of visits before familial strife, and how their visits would promote the well-being of the child. It is important to note that in this instance, there must be an on-going custody case between the parents in order to seek visitation. In summation, Grandparent s do have rights, albeit few, which depend upon the familial situation between the parent and child. If you have any questions about Grandparent’s rights give our office a call today to set up a consultation! Jennifer J. Bell is an associate attorney at Amy Edwards Family Law. She is licensed only in NC. Laws change. This article is current as of December 2017. www.AmyEdwardsFamilyLaw.com (c)2017...

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What Exactly is an Estate Plan?

Posted by on Oct 10, 2017 in Blog, Estate Planning and Asset Protection | 0 comments

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 upon specific legal statutes. Basically, if your estate goes to probate without an estate plan in place, there are specific rules that cannot be avoided on how your valuables will be handed out. This is why having an estate plan is extremely important. You should have a say in how your affairs are handled, even after your death. A basic estate plan includes a will and/or trust. A will is a personal declaration of your intentions about the disposition of your valuables after your death. Trusts involve the transfer of your, the grantor, valuables to an individual, the trustee, who manages these assets for the benefit of one or more others, the beneficiaries. Wills and Trusts can be particularly convoluted, which is why it is always important to consult an attorney before beginning to prepare either....

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

Posted by on Sep 22, 2017 in Blog | 0 comments

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 other disputed fact, witnesses may testify about the opportunity, and/or whether the spouse and third party were inclined to cheat. Other evidence might include a secret credit card account statement reflecting hotel charges or discovered e-mails/texts between the lovers. Family law cases are bench trials, cases heard by a judge. One of the few exceptions to that rule is marital misconduct, including illicit sexual behavior. A jury can render a verdict on whether the spouse committed marital misconduct. NC Gen. Stat. §50-16.3A.   Uh Oh . . . Did You Condone It?   One defense to alimony is condonation.  As the name suggests, it means all is forgiven . . . and it gives a bit of a clean slate to the cheating spouse. If the innocent spouse discovers an affair and continues to stay in the marriage, the law gives the cheating spouse a second chance. After the second chance is given,...

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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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