I WANT IN THE RING, BUT WE BOTH WANT TO KEEP OUR POSSESSIONS SEPARATE, WHAT DO I DO?
Medicare is great, but it can turn into a real bear when the time comes to disburse your settlement proceeds. It's super important that you know this stuff before it comes back to bite you; read on!
Today I'm going to discuss the difficult topic of Domestic Violence. It can be a difficult conversation for some because they may feel that they are not actually in danger or don't want to view themselves as a victim. Some victims may feel that a physical altercation was a one time incident and not worth reporting. In truth, the damage done by an abuser goes well beyond physical actions and can create a situation of control and dependency all while the victim's avenues of independence and escape are slowly shut off.
If you are a victim of domestic violence or know a loved one that cannot escape the grasp of an abuser there are people that can help.
You can also seek a Domestic Violence Protective Order under Chapter 50(b) of the North Carolina General Statutes.
There are two types of Domestic Violence Protective Orders (common referred to as DVPOs). The first is an ex-parte DVPO which is going to be in effect temporarily (typically up to 10 days absent a continuance). The other DVPO type can be in effect for up to a year and renewable prior to the Order's expiration. A DVPO can be renewed indefinitely upon a showing that the Plaintiff is still in fear of the Defendant. There are no filing fees associated with a Domestic Violence Protective Order.
If you cannot afford private counsel I highly recommend contacting Legal Aid of North Carolina here. You can find your local county at the link.
We have reached the final part of my seven part series regarding the basics of North Carolina Family Law. If you need to get caught up to speed check out our archives. Today we are coincidentally going to talk about obtaining the final divorce decree. North Carolina divorce is governed by NCGS 50-6 and has essentially two elements. The first element is that at least one party must be intentionally separate and apart from the other party for at least a year and a day. I'm aware the statute says one year, but the extra day is necessary because you don't want to file it on day 365. Safer to file the divorce complaint on day 366. The extra day won't kill you, but a Judge may kill your divorce claim if you file too early. The second element is that at least one party be a resident of North Carolina six months or more prior to filing suit. If the Plaintiff is not a NC resident then the suit needs to be filed in the county in which the Defendant resides.
CAN WE LIVE IN SEPARATE PARTS OF THE HOUSE AND BE CONSIDERED SEPARATE?
This is a very common question and the simple answer is no, you will not be considered separated if you continue to share the same roof. To be considered separate, at least one of the spouses must intentionally cease cohabitation and actually be physically separate from the other spouse for that year and a day time period we talked about earlier. Only one of the spouses have the intention to cease cohabitation (and actually done so) for the separation to be valid.
WHAT IF WE GET "BACK TOGETHER" FOR A NIGHT OR TWO?
Resumption of marital relations (voluntary renewal of the husband and wife relationship) can stop the separation process and force a new separation clock to start ticking. However, infrequent and isolated incidents of sexual conduct between the parties will not mean that the parties have resumed marital relations.
PROOF OF SEPARATION DATE
Assertion of a date of separation by the complaining party on a divorce complaint with a verification page will be the Plaintiff's (complaining party) proof that the party's separated on the date indicated. The spouse that is the Defendant can dispute the date if they believe the separation actually occurred later and they can provide some sort of physical proof if they have it. This is pretty rare, but I tell my clients to be honest when providing facts in any court document. I do that because a verification page is going to be notarized and the party signing the verification page is essentially attesting to the court that what they are saying is true and correct to the best of your knowledge. So don't lie. Lying on a court document will be perpetrating a fraud upon the Court. Give the date of separation as you best recollect it.
I'VE MET THE SEPARATION REQUIREMENT AND RESIDENCY REQUIREMENT, NOW WHAT?
Great question. So to institute any lawsuit in North Carolina there needs to be a summons and complaint filed with the Court then served on the Defendant. A summons gives the Defendant information about what county and division the action is taking place (Ex. Wake County District Court) and who the other party is along with their mailing address and attorney's information, if applicable. The absolute divorce complaint will state the facts relevant to the two main elements, which are year and a day separation timeframe and residency requirements along with what the Plaintiff is seeking as an outcome (prayer for relief).
The next thing you must do after filing is get service on the Defendant under Rule 4 of the North Carolina Rules of Civil Procedure. Service is usually completed by Sheriff or by Certified Mail, but the rule allows for others (like process servers) to effectuate service on a Defendant.
Once the Defendant is served they will have thirty (30) days to file an answer or responsive pleading with the court (you can ask the court for a 30 day extension if need be). If no answer or responsive pleading is filed, then the Plaintiff can file a Motion for Summary Judgment under Rule 56 or file Motion for Default Judgment under Rule 55. Both can result in an Absolute Divorce being entered by the Court.
DOES THE FACT THAT I OBTAINED A FINAL DIVORCE DECREE OR JUDGMENT EFFECT ANY OTHER AREAS OF FAMILY LAW?
That is a big affirmative. However, it only pertains to Equitable Distribution, Post-Separation Support and Alimony. If an ED, PSS or Alimony claim has not been filed by one party and a final divorce decree/judgment is entered, then both parties are kept from asserting any of those claims. That's why it is very important to contact an attorney once you are served with a divorce complaint. Once that final divorce decree is entered then your claims for ED (property distribution), Post-Separation Support and Alimony are gone if nothing is pending for those matters.
CAN I GET MY NAME BACK?
Again, a big affirmative on this as well. If a Plaintiff wishes to return to their maiden name the Plaintiff should put that request in the facts and prayer for relief. If the Defendant wants to resume their maiden name, then I would advise on filing an answer to the complaint specifying that request. If the divorce with a name change provision is granted by the court, then all that is left is filing this form. Once you have the proper court documents the real fun begins in changing your name. That's right, you get to go through the process with the DMV, North Carolina Department or Transportation and the Social Security Administration. Luckily for you, the information on how to do that can be found here.
On that note, this will conclude the North Carolina Family Law Basics (7 Part Series).
Don't fret though as I will be updating this blog weekly with more information regarding North Carolina Family Laws.
Microchipping employees is a thing and IDK what's going on anymore...
In your annual review of your company's employment handbook, I bet you've never once thought to yourself "Hey! We should add a microchip policy!" But maybe one day you will....
On Aug. 1, 2017 a Wisconsin tech firm introduced a microchip that can be implanted in the hand of its employees. This single chip can do things like allow access to buildings and networks, use copiers, open doors, and possibly purchase items from the company's cafeteria. While their policy on this microchip was voluntary (read: employees who opted out were not retaliated against), more than FIFTY (50) opted to get said microchip implanted under their skin. Apparently the microchip is smaller than a grain of rice. BUT STILL!
Employer Security via RFID.
For employers working in large spaces and with sensitive data and technology, the microchip concept adds a level of security unseen until now. The microchips being used for employment purposes are essentially mini GPS's also called radio frequency identification ("RFID"). It allows employers to monitor and regulate access, as well as monitor and regulate time. For example, these RFID devices can alert employers if a certain someone is spending an excessive amount of time "getting coffee." These devices can also collect data on access to certain buildings, units, labs, servers, etc.
Attorneys Caution RFID use (duh).
Anytime employers ask about sticking a GPS device in an employee's hand, I shutter to think of all the ways this scenario can go wrong. Who pays the medical bills when one employee's implant causes an infection? What happens to data collected while the employee is not working for the employer (e.g. evenings and nights)? How many exceptions will need to be made for ADA/Title VII accommodations and how will this even work? What happens when that rice grain goes rogue and your workforce turns into robots? All these questions and so little answers cause all us attorneys to shrug and say "it depends."
What Happens Next?
Only a few U.S. companies are experimenting with RFIDs on a voluntary basis. Right now the cost behind these microchips will deter most employers from even considering the concept but I would no longer consider microchipping employees a thing of the future. In other words, we'll probably be hearing more on this topic in the next decade. In the meantime, I think I'll stick with microchipping my cat.
If you and your spouse have come to the difficult realization that your marriage is no longer working and there are certain factors that lead you both to the conclusion that a separation is the only rational conclusion to your relationship, then a separation agreement may be the best, most cost-effective resolution to your marriage. Separation agreements are authorized by North Carolina General Statute 52-10 as well as common law.
WHAT IS A SEPARATION AGREEMENT EXACTLY?
A separation agreement is a contract between two spouses that can include as many topics as you and your spouse can agree upon. Most of those topics I've already covered in my family law blog that can be found here and they include child custody, child support, and equitable distribution. Spouses can also include post-separation support and alimony in a separation agreement as well.
WHAT RECOURSE DO I HAVE IF MY SPOUSE BREACHES THE SEPARATION AGREEMENT?
A breach of a separation agreement is the same as breaching any contract made between two parties. The remedy is the same as if party A and party B enter into a contract for services and party B breaches. Party A can file a breach of contract action against party B to recover damages. Same with a separation agreement. If a separation agreement states that spouse A is to pay spouse B $1,000 a month in alimony and spouse A misses a payment or payments, then spouse B can file a breach of contract suit against spouse A for breaching their separation agreement. Keep in mind that the statute of limitations for any breach of contract action is three years from the date of the breach or ten years from the date of the breach if the agreement was signed under seal by both parties.
CAN A JUDGE ENFORCE THE AGREEMENT WITHOUT A PARTY FILING A BREACH OF CONTRACT CLAIM?
Yes, however, the agreement must be incorporated into a court order for a judge to be able to enforce the agreement through contempt. If the parties do not have a specific provision in their separation agreement that states that they both intend to have the separation agreement incorporated into a final divorce order, then most judges will not agree to incorporate it into the final divorce order.
WHAT IF MY SPOUSE WON'T SIGN THE AGREEMENT?
Both parties must voluntarily sign and have their signatures notarized for a separation agreement to be valid. However, there will not be a valid contract if a party signs under duress or is unduly influenced. I highly recommend that parties sit down and come up with an idea of what they will agreed upon in a separation agreement and figure out what areas they may need help with. If both parties are far off in what they want in the separation agreement, then a separation agreement may not be in the cards. However, if both parties have everything worked out except one area (ex. Post-Separation Support), then a separation agreement will still be a an option.
DO I NEED MY SEPARATION "PAPERS" IN ORDER TO BE LEGALLY SEPARATED?
This is a very common question and certainly understandable given what is seen in popular culture, but the answer is no, spouses do not have to actually have anything in writing to be legally separated. That said, I highly recommend having a separation agreement in place so there is proof of when the separation started as well as written proof as to what the parties agreed upon in regards to marital property, custody schedules, etcetera. A spouse starts the separation process when he or she moves from the marital home and intends to be separate and apart from the other spouse and actually does so. I'll go deeper into the elements of an actual divorce action in North Carolina in my next blog post.
In the meantime, check out my child support video posted here. Until we meet again.
At least on its face, N.C.G.S. § 44-49 leaves some medical providers with their derrières to the wind. Does that mean they're out of luck? Ha! Nope!
Today, as promised on my last blog post and video, I will be discussing Child Support. Child support is governed by North Carolina General Statute § 50-13.4 and is available as a legal remedy to any person, parent, institution or organization that either has custody of a child or is bringing a custody action or proceeding for the custody of such child.
In my opinion, North Carolina has done a great job in taking a lot of the dispute out of child support matters because they use child support guideline worksheets that determine which party has a child support obligation to the other. The guideline worksheets, found here, use an algorithm in determining which parent pays how much in support for the minor child or children.
The reason why I stated in my custody blog post and video that custody and support are intertwined is because the number of overnights that a parent has with a child will determine what worksheet is used.
Worksheet A is used if one parent has primary physical custody of all of the children for whom support is being determined. Primary physical custody is determined if one parent has custody of a child for 243 nights or more. If you have two children and custody of one or more of the children is shared. If that ends up being the case then you would use Worksheet B.
Speaking of Worksheet B, it will be the proper worksheet for calculating child support obligations if a child lives with both parents for at least 123 nights or more during the year and each parent assumes financial responsibility for the child's expenses during the time the child lives with that parent.
There is one other Child Support Worksheet in North Carolina and it is, you guessed it, Worksheet C. Worksheet C is typically not used very often only because it is for situations where parents have multiple children and one parent has primary custody of one child for whom support is sought while the other parent has primary custody of another child or children for whom support is sought. This is called Split Custody.
So, what else goes into determining how much support a party is obliged to pay for a child or children? Good question, the guidelines also use number of children, gross monthly income of both parties, pre-existing child support payment, number of other children (for whom a party already pays child support), work related child care costs, health insurance premium costs, & extraordinary expenses (typically necessary education expenses and travel to the other parent's home to pick up the child, but a party can try to argue other expenses related to the child).
WHO CLAIMS THE CHILD(REN) AS DEPENDENT ON TAXES?
The schedule (worksheet) assumes that the parent who receives child support claims the tax exemptions for the child.
STARTING A CHILD SUPPORT ACTION
To get a child support action started you can go two routes. One way would be to file with the Child Support Enforcement (CSE) office in the county in which your child has resided for the last six months or more. You can find your (CSE) office by clicking here. This is the public branch of child support cases and they can sometimes be very busy.
The second way to start a child support action is by filing a child support complaint, summons, domestic civil action cover sheet, etc. with the family court in the county in which your child has resided for the last six months or more. You will have a filing fee of $150; however, your case will more than likely move more quickly than option one above.
WHAT HAPPENS IF CUSTODY CHANGES?
If custody changes to where you go from shared custody to primary custody and therefore go from Worksheet B to Worksheet A you can file a motion to modify child support under NCGS §50-13.7. You just have to show a substantial change in circumstances which includes, but is not limited to, change in custody overnights (worksheet change) and increase or decrease in gross monthly income by a parent or parents.
If a party to a child support action does not have income, resigns from a job for no reason other than to decrease their income for CS purposes, is terminated from their employment (due to party's behavior), or otherwise works less hours to decrease income, then the opposing party can ask the court to impute income to the party with no or lowered income. There must be a showing of bad faith by the party who's income is decreased for the court to impute income.
Imputing income basically means that the court will assign an amount of income to one party. If a party has no income, the court may decide that their gross monthly income will be minimum wage at 40 hours a week. Say the court determines that a party has intentionally decreased their hours worked or otherwise decreased their income for purposes of attempting to pay less child support (bad faith), then the amount the party was earning prior to the decrease in gross monthly income will still be attributed to them on the guidelines worksheet. That is the party's potential earning income.
I hope these basics of North Carolina Child Support laws have been helpful. I will be back again next week with a discussion on obtaining an actual divorce.