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DIVORCE EXPERTS ALL SHARE THEIR NUMBER 1 TIP

Posted by on Jun 16, 2018 in Blog, Child custody, Court, divorce, Family Law | 0 comments

DIVORCE EXPERTS ALL SHARE THEIR NUMBER 1 TIP

  We’re excited to share this article in which Ms. Edwards is featured as the 16th expert. Click the title below: 21 Divorce Experts All Share Their #1...

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Contempt of Court in North Carolina

Posted by on Jun 8, 2018 in Blog, Court, Family Law | 0 comments

Contempt of Court in North Carolina

Contempt of Court in North Carolina When someone violates a court order, the other person can file a motion asking the court to hold him or her in contempt. In family law, judges enter orders for child custody and support, alimony and marital property division, among others. Our statutes define the way a judge can require people to obey court orders, up to and including incarceration. There are two kinds of contempt, civil or criminal. Civil Contempt After the judge determines the order is valid and still in effect, a judge must be certain the “purpose of the order may still be served by compliance with the order.” NC Gen. Stat. §5-21(a). To enforce an order by civil contempt, someone must willfully fail to comply with the order. He or she must have the ability to comply or take reasonable measures that would enable the person to comply. For instance, if you are required to pay child support by court order but you are in a bad vehicle accident and unable to work some period of time because you were in the hospital for a month, you might be able to prove you were unable to comply with the order. That doesn’t mean the judge will cancel or reduce the child support obligation. It just means that the order is not being enforced by holding you in contempt and incarcerating you. There are other ways people can enforce orders. Incarceration For Civil Contempt The purpose of civil contempt is not to punish someone as is the case with criminal contempt. Instead, the purpose of incarceration is to force the person to comply with the order. If a parent owes back child support, he or she is taken into the custody of the sheriff until the payments are made. The judge must order certain release conditions called “purge conditions” because doing those things will allow the person to purge or rid himself or herself of contempt. It is said that in civil contempt, the person incarcerated holds the keys to the jail because all he or she has to do is comply with the order. The person refusing to comply with an order of the court may be initially incarcerated up to 90 days. If there is no compliance, the judge will have another hearing at the end of the 90 days. The maximum time of incarceration for civil contempt is one year. NC Gen. Stat. §5A-21(b2). Because the violator faces incarceration, the court will usually offer to appoint an a9orney if the person can’t afford one. Criminal Contempt Instead of holding the keys to the jail, the purpose of criminal contempt is punishment. This is what people usually think of when contempt comes to mind. NC statutes list plenty examples of bad behavior, all of which must be willful and usually in the courtroom. These include interrupting court proceedings, disrespecting the judge, disobedience or interference with a court’s order or directive, refusing to answer a question on the witness stand or refusing to be sworn in (of affirmed) to testify. 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...

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The NC SAVAN Program: Statewide Automated Victim Assistance and Notification

Posted by on May 28, 2018 in Blog, Domestic Violence, Family Law, Resources | 0 comments

The NC SAVAN Program: Statewide Automated Victim Assistance and Notification

The NC SAVAN Program: Statewide Automated Victim Assistance and Notification * Taken directly from the web site of the NC Department of Public Safety:  www.ncdps.gov/dps-services/victim-services/statewide-automated-victim-assistance-and-notification-savan  NC SAVAN, is a criminal justice information-sharing system that supports automated victim notification. NC SAVAN operates a 24-hour toll-free automated offender information and notification service. Individuals may call the toll-free number, 877-NC SAVAN, (877) 627-2826, to learn about an offender’s status, to register for offender notification or to learn about victim assistance resources in their area. Notifications are provided in English and Spanish and translation services are available in more than 100 languages relative to services provided by SAVAN. Once registered, users may receive offender notifications through automated telephone and e-mail notifications, or by downloading telephone applications. This service is meant to augment victim services offered by key...

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What Do Judges Consider in Alimony Cases?

Posted by on May 20, 2018 in Alimony, Blog, Court, divorce, Family Law, Marriage | 0 comments

What Do Judges Consider in Alimony Cases?

What Do Judges Consider in Alimony Cases? By Amy A. Edwards The factors guide judges in reminding them of the most important things. Either spouse may seek alimony if he or she earns less than the other in North Carolina, although there’s no specific dollar amount that determines by how much less. While we have guidelines in child support cases that compute an amount based on incomes and certain child-related expenses, we don’t have anything of that nature for alimony. Each party prepares a budget as a trial exhibit, which includes income and living expenses. If the judge awards it, the amount of alimony and how long it will be paid is discretionary. Alimony Factors: Incomes/Benefits NC judges must consider a list of factors in alimony cases. The first factor to consider is how much income each spouse has, and sometimes what a spouse has the capacity to earn. Also considered is unearned income, which is not shown on a W-2 statement, such as dividends, rents, retirement payments, disability, social security payments and employment benefits such as medical insurance (and/or dental and vision insurance), retirement benefits, and marital property and debts. Alimony Factors: Each Person’s Situation The court considers each spouse’s individual circumstance, education, age, physical and mental abilities, and emotional conditions. For example, a 25-year-old spouse and a 60-year-old spouse will be treated differently based on medical conditions and the ability to work. Their needs and expectations, such as the anticipated date of retirement or going back to school, also vary. Marital misconduct of either spouse may also be considered. Alimony Factors: History of the Marriage The court also looks at the standard of living that the parties established during the marriage. How long the parties were married and the contribution by one spouse to the education, training, or increased earning power of the other spouse are other factors. One party might have kept the home-fires burning for the last ten years, caring for the children while the other devoted his or her energy to obtaining a degree or advance in a profession, improving the family income. In fact, the statute also requires the judge to consider the “extent to which the earning power, expenses, or financial obligations of a spouse will be affected by reason of serving as the custodian of a minor child.” Alimony Factors: Miscellaneous The court looks at family obligations, such as paying child support for children with another parent, or alimony to a former spouse. Courts usually have the trial for equitable distribution (the division of marital property and debt) before the alimony trial. This is because the judge will look at who kept which assets, and who is responsible for various marital bills, which is important when determining each party’s reasonable expenses. If someone brought assets into the marriage, the court has the right to consider. The federal, state, and local tax ramifications of the alimony award are legitimate factors for the judge to weigh in making an alimony award. The factors are meant to guide judges in reminding them of the most important things to think about when deciding what to order in alimony cases. The flexibility is there but just in case, the statute also tells judges that they are free to consider “Any other factor relating to the economic...

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Domestic Violence Protective Orders in North Carolina

Posted by on May 6, 2018 in Blog, Domestic Violence | 0 comments

Domestic Violence  Protective Orders in North Carolina

Domestic Violence Protective Orders in North Carolina According to the NC Coalition Against Violence, there were 79 domestic violence homicides in NC in 2017. “On average, nearly 20 people per minute are physically abused by an intimate partner in the United States. During one year, this equates to more than 10 million people.”  People with certain personal relationships may seek domestic violence protective orders (DVPOs). These include household members, parents of a child in common, spouses and former spouses, and others. DVPOs give law enforcement the ability to arrest a defendant if they have probable cause to believe he or she violated the order. Intentionally making a false statement to law enforcement that there is a DVPO when there isn’t one is a crime.  NC Gen. Stat. §50B-4.2. What Counts as Domestic Violence?    North Carolina law specifies three types of domestic violence which are summarized here. One is intentionally causing (or attempting to cause) bodily injury. Another is committing rape and/or sexual assault. The third type of domestic violence is placing a person in fear of imminent serious bodily injury, or continued harassment. As used here, harassment means it reaches a level so bad that it inflicts substantial emotional distress. This definition applies not only the victim, but also the victim’s family or household in some circumstances. Criminal statutes detail the harassment as conduct that is “directed at a specific person that torments, terrorizes, or terrifies that person and that serves no legitimate purpose.” NC Gen. Stat. §14-277.3A.  What is a DVPO? A domestic violence protective order is awarded by a judge to protect a victim by prohibiting the defendant from assaulting, threatening, abusing, following, harassing (by telephone, visiting the home or workplace, or other means), or interfering with the victim and/or children who live with the victim. DVPOs can also order a defendant to stay away from the victim’s residence, school, place of employment and anywhere else that would be applicable. These are civil cases, not criminal in nature although the violation of a DVPO is a crime. As a separate matter, a defendant might also face criminal charges for assault on a female, battery, interference with a 911 call, child abuse or other charges.  Are There Other Remedies? DVPOs can also require the defendant to attend and complete an abuser treatment program or prohibit him or her from purchasing a firearm for a period of time. The court has the authority to award temporary possession of personal property, including a family pet. An emergency DVPO might be awarded before the defendant has the opportunity to appear in court.  If a child is exposed to a substantial risk of physical or emotional injury, or sexual abuse, the court might award emergency temporary child custody. The court may require the defendant stay away from the child, to return the child to the other parent, or prohibit him or her from removing a child from someone’s care. The office of the NC Attorney General offers an Address Confidentiality Program, which is a mail forwarding program that adds another layer to the protections of domestic violence victims.  Help and Resources: Information on Available Resources in North Carolina Personalized Domestic Violence Safety Plan (checklist of things to do when facing violence in a relationship) from NC Dept of Social Services. Real Crisis Intervention in Greenville offers counseling, advocacy, information and referrals.  Amy A. Edwards is a family law attorney in Greenville, NC, certified by the NC State Bar Board of Legal Specialization...

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Digital Privacy: Does Your Separation Agreement Have It?

Posted by on Apr 11, 2018 in Blog, divorce, Estate Planning and Asset Protection, Family Law, Privacy | 0 comments

Digital Privacy: Does Your Separation Agreement Have It?

Digital Privacy: Does Your Separation Agreement Have It? When negotiating an agreement about your divorce, you think of dividing assets like the cars and the house. But people don’t always think about their digital property and privacy. There probably aren’t lots of “boiler plate” paragraphs in separation agreements but you should ask your attorney to address it. What is Digital Privacy? My definition of digital privacy in divorce cases includes your ability to exercise sole exclusive use and ownership of your personal data, be it by key keypad, smart phone or computer. While there are legitimate and lawful purposes for using each other’s personal data, such as applying for social security benefits or filing tax returns, there are many other uses your ex might want to make of your data, even if it is just being nosey. Protected Information A good separation agreement should define what type of information should be protected. Your ex should be required to maintain the confidentiality of your personal data, such as financial records, legal affairs, medical records (including any substance abuse or mental health records), employment, records, and military or school records. Social security numbers, taxpayer identification numbers, passport numbers, date of birth, mother’s maiden name, or any other similar identifying information should be held in confidence. Require other identifying information like your online account numbers and passwords, ATM transactions, your credit report, personal identification numbers (PINs), and info for online shopping web sites such as Pay Pal or Amazon to remain confidential. Posting or other sharing embarrassing and/or sexually explicit or sexually suggestive material should likewise be prohibited. Access and Security of Digital Data  By the time you’ve shared a child or a marriage, you can probably guess each other’s passwords or PIN numbers. Your first plan of attack is to change your passwords and other barriers to access. Get a copy of your credit report and close accounts you no longer use. In the agreement, list examples of what is considered a violation. The most common examples are accessing the other party’s Facebook or other social media account, accessing his or her phone, text or voice mail messages, and e-mail messages. Public Embarrassment and Humiliation  The law related to social media and what can or cannot be used or posted is constantly evolving, as is the technology we use. It can be difficult to determine what is, or is not, acceptable because these issues implicate Constitutional freedom of speech and the definition of what is a crime. There are thousands of situations that could arise. Still, that doesn’t mean you should not at least try to include types of protections in your separation agreement.  An agreement can’t cover every instance of mean-spirited posts on social media. Draw the line at posts about sexual activities and images exposing intimate body parts. Include electronic or written communication, photographs, video, texting, tapes, audio and other recordings.  Use of Personal Data Understanding that the terms of an agreement might not always be enforceable in light of a balance between freedom of expression and bad or criminal acts, it is still wise to make the intent of your agreement clear. Specify that neither spouse can use (or enable a third-party to use) the other person’s data to commit fraud or a criminal act or to disparage, harm, negatively affect the other party’s public image, reputation, or business, school, or career prospects, coerce, harass, intimidate, demean, humiliate, or cause financial loss to, the other party. Remedies If your ex violates...

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Why Are They Doing This? Motives in Family Law Disputes

Posted by on Mar 31, 2018 in Blog, Court, Family Law | 0 comments

Why Are They Doing This? Motives in Family Law Disputes

Why Are They Doing This? Motives in Family Law Disputes When they are trying to settle their cases, clients ask why the other parent or spouse is doing certain things. As attorneys, we can’t know exactly what anyone is thinking or tell you the reasons why people do things. But based on our experience, we see some routine reasons people do things when they are dealing with family issues such as a divorce or child custody matter. Unfortunately for many families, the legal system is an adversarial one. When a spouse or parent gets along fairly well with the other, each might intend to reach an agreement without the time and expense of court. They may already have attorneys and the negotiations may be underway but when one decides to take action against the other (often by filing a lawsuit), it can be shocking and very offensive. People have many rights they can exercise, even doing so isn’t necessarily useful or “fair.” It goes against common sense, but the law doesn’t always require reasons for doing things. It is a system, played out on under the fluorescent lights of the courtroom.  The most common time for wondering why the other side does something is when one party decides to file a lawsuit out of the blue. The only way to force someone to do something is to take it to court. Instead of letters going back and forth, a lawsuit means there is immediately a list of deadlines and a trial date. It can mean someone calls a bluff. The other person must then decide if he or she really wants to litigate their case or not.  Another common question is why the other side is lying about something in court documents. First, lying is frequently open to interpretation. Second, people do genuinely misunderstand and/or miscommunicate about their dispute, which probably contributed to their separation or dispute in the first place. By the time you add two attorneys with second-hand information arguing about something, you have four interpretations of the same event or fact. Others are in denial about what really happened. Third, people do lie.  The relationship between the attorney and client offers another piece to the puzzle of figuring out why people do things that don’t seem to be practical when dealing with a dispute. Like any relationship, there are numerous types of the attorney-client relationship. Some clients actively manage their cases or even argue about the way their case will be handled. Other clients are passive and do everything they are advised to do with no questions asked.  The relationship can mean the other attorney is in complete control, and perhaps aggressive and prone to “scorched earth.” When a client has plans about how the attorney will assist him or her, the case will reflect more of his or her values. Emotions run high in these cases, and it is easy to get wrapped up in the relationship itself and hurt feelings. Unfortunately, another reason a case takes a turn for the worse is finances. This means the person who has the money might turn up the pressure, a tactic to “starve out” the other person financially....

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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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