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by Leesa M. Poag, Attorney

Prior to the beginning of each session of court, a calendar call takes place.  Family law attorneys across the Triad are familiar with this process in which hearing dates are selected prior to an upcoming session of court.  Though it may seem simple to select a date for your hearing and report it to the court, there are several factors that must be taken into account prior to selecting a hearing date.

The first consideration for calendar call is what issue has been calendared for hearing during the session.  Is it one that will require a trial, such as custody or equitable distribution, or is it only a motion that needs to be heard, such as a motion for summary judgment or motion to compel? You must be clear on exactly what it is that has been noticed for hearing before selecting a hearing date.

A second factor that should be considered prior to calendar call is whether the issue is ready to be heard.  Before a hearing can occur, the opposing party must be served with notice of the issue that you are asking the court to hear.  Without proper notice to the opposing party, the court will not be willing to hear your case, and you will be forced to continue your hearing to another session of court.  If you have only recently filed the complaint with the claim you want heard, you should also consider whether the opposing party has had time to respond to your complaint.  If the opposing party’s time to answer has not expired, this could also cause the hearing on your claim to be delayed.

The status of the case as a whole is also important. There are some claims that should be heard before, or at the same time as, other claims.  For instance, since the custody arrangement will affect the calculation of child support, it is often most efficient to hear child support either at the same time as custody, or after a custody order has been entered in order to prevent duplicative hearings.

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by Benjamin N. Neece, Attorney

            Equitable Distribution, in a nutshell, is giving each party to a marriage what they are entitled regarding property acquired during the marriage.  As one of the pillars of many divorce proceedings, it is commonly the most complex aspects, requiring extensive research into the lives of individuals going through a divorce.  In some instances, the parties to a divorce can amicably agree as to how the property acquired during the marriage shall be distributed, and in some instances where parties fail to agree, distribution may be simple due to the nature, amount, and availability of information regarding marital property. In other instances, the parties cannot agree, and the marital assets are numerous, complex, and difficult to find; this situation can create a very tall task for attorneys in properly representing client interests.

A recent North Carolina case, Uli v. Uli (N.C. App., 2017), breaks down equitable distribution in an effort to comprehensively explain how North Carolina courts are to handle these types of claims.  North Carolina courts conduct a three-step analysis to determine what is marital property, what is divisible property, and how to provide for an equitable distribution between the parties.  First, the court must identify and classify the property as marital or separate based upon evidence presented regarding the nature of the asset.  Next, the court must determine the net value of the marital property as of the date of separation. Lastly, the court must distribute the marital property equitably. Smith v. Smith, 433 S.E.2d 196, 202-203 (1993).

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by Benjamin N. Neece, Attorney

The two big classifications of property in all equitable distribution cases are “marital” and “separate” property.  These are the ones the get all the attention and are subject to some of the most intense scrutiny and debate; however, there is a third area of property that is equally as important and can at times, prove to be a valuable player equitable distribution cases. Yes, I am talking about “divisible property!”  Continue reading →

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by Benjamin N. Neece, Attorney

A great aspect of living in the triad area is the rich history of successful businesses that put down roots in the community and prospered over the years.  Greensboro is home to very familiar brands such as Wrangler and Volvo, and right down the road is High Point, which is known for being one of the largest home furnishing manufacturing areas in the country.  Business and industry have been drawn to the area for years, and a growing population provides ample opportunity for entrepreneurs of all sizes to flourish.  Some of the area’s most vital businesses are ones defined as “closely-held,” or more commonly referred to as, “Mom and Pop” businesses.  Unfortunately, sometimes, Mom and Pop do not see eye-to-eye, which may jeopardize the future of these businesses. Continue reading →

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By Carolyn J. Woodruff, North Carolina Family Law Specialist

It is a privilege in our society to be in a civil courtroom. Courtrooms are places of decorum and are necessary to our system of justice and our freedom. Without witnesses, a trial cannot go forward. Without trials, our freedoms suffer. It is simply part of being a citizen of this great United States.

How does a courtroom look?

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Dear Carolyn,

I believe I am the Father of a son, but the Mother is married to someone else.  I dated Mother while she and her husband were separated, but now they are back together.   We had sex during the time we were dating and the child was born 9 months later—perfect timing for the child to be mine. Mother and Mother’s husband will not let me see the child, and quite frankly, hide him from me.  I want to see my son.  What can I do?  I do not have any other children.

Bewildered Father

Dear Bewildered:

You have a chance for visitation, and here’s what you will need to do.  North Carolina has a very strong presumption that a child born of and during a marriage is the child of the Husband to the marriage.   You will have to file a lawsuit asking for visitation and asking that the presumption be overcome.

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Dear Carolyn:

I have a family member who is separated. Before the separation, this person purchased a house with the deed only in her name and the deed of trust in both names. How will the courts view this property for equitable distribution? My family member thinks that since the property is only in her name that the other party has no rights under equitable distribution. Can you explain the difference between Deed and Deed of Trust?

Thanks

Carolyn Answers….

This is a very interesting and quite technical question. So, thank you for writing.  I’ll start first with the definitions of deed and deed of trust.

A deed is the ownership or title documents; by analogy, your car title is a title document for a car like a deed is the title document to your home. Thus, the deed states who owns the home, and generally on the deed the owner is referred to as the grantee. This ownership document (deed) is registered at the Register of Deeds.

A deed of trust is the security for the debt or Promissory Note. When you buy a home or get an equity line on your home, you sign a Promissory Note to the lender. At the time of borrowing, you also sign a document called a deed of trust as security (a lien); if you do not pay the Promissory Note, the signatures on the deed of trust allow the lender to foreclose on the home and take the home away from you. If you examine the deed of trust, you will notice that the lender is the beneficiary of the deed of trust, and that there is a trustee. It is the trustee that forecloses if the Note is not paid. When the Note is completely paid, the lender is required to cancel the deed of trust on the public record at the Register of Deeds. We are one of about twenty states that use the “deed of trust” system.  The majority of states use a “mortgage” system.

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Dear Carolyn:

My wife and I have been married 20 years. Our child is graduating from high school this year, and we are miserable.  We own a home with lots of debt and we cannot afford to separate without selling our home first.  We both work, but there simply is not enough money to maintain two households without first selling the house.  Is there any way we can declare ourselves separated and maintain the same household until the house sells?   Why is the North Carolina waiting period for divorce a year?  I hear that one year is a long time as compared to other states.  Can we settle our property now?  We have retirement, cars and furniture, along with the house?

Carolyn Answers….

Generally, North Carolina requires 365 days of separation, with the intent of one spouse to live separate and apart forever, before a spouse may apply to the court for an absolute divorce. Separation in this state means, literally that the spouses, during separation, must have separate residences and essentially, conduct themselves as single for the entire 365 days. Isolated incidences of sexual intercourse, such as a weekend at the beach with an estranged spouse, do not start the 365 day period over.

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Dear Carolyn:

The ex-wife of my new husband is constantly calling my cell phone, following me in my car, and making faces at me at the children’s soccer game.  I get texts from her calling me names.  She even threatened to come to my work. I feel intimidated.  Can I get a 50B for domestic violence and harassment?

Carolyn Answers….

You may be able to get a 50-C, not a 50-B. A 50-B is a domestic violence protection order that can be obtained if you have certain types of relationships with the defendant.  Unfortunately, 50-Bs do not cover relationship problems between a former wife and a new wife.  Typically, 50-B relationships are romantic relationships or parent-child type relationships.

You are eligible to get a 50-C against your husband’s ex-wife.  Essentially, a victim (you) under the 50-C statute:  “Victim.—A person against whom an act of unlawful conduct has been committed by another person not involved in a personal relationship with the person as defined in G.S. 50B-1(b).”  G.S. 50C-1(8).

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Benjamin N. Neece, Attorney, Woodruff Family Law Group

            When analyzing custody, the issue of who has rights to custody of a minor is commonly focused on the biological parents of the child.  In the eyes of the law, under the right circumstances, biological parents may be disfavored in congruence to “third party” individuals who assert rights to custody.  Some of the most common third-party custody claims are, unsurprisingly, asserted from either the paternal or maternal grandparents.  North Carolina and much of the south, is known for having strong family ties and deep communal roots where grandparents often play a large role in raising not only their children, but their children’s children.  These relationships are often supplemental to the relationships between biological parents and their children, but in some situations grandparents end up being the de facto “mommy” and “daddy” to the minor children.  Where biological parents display continued behavior of either unwillingness or inability to effectively parent their children, grandparents step in and seek legal intervention for the sake of the children.

When it comes to the law, courts have a duty to put the best interest of the children above all others.  Under the Constitution of the United States, the biological parents of a minor have a protected interest in the custody, care, and control of their children.  This is an incredibly high bar to overcome for third-party individuals seeking to assert custodial rights in opposition to those possessed by biological parents.  The law provides for a vague and widely discretionary test for resolving custody disputes of this kind.  While the interest of the children are intended to be promoted above all others, biological parents maintain an almost equally powerful interest that will more often than not prevail over that of third-party individuals unless it can be shown that the parents are unfit or have engaged in some “conduct inconsistent with their protected status.”  Courts do not provide a bright line test in determining what conduct constitutes a violation, but some examples are behavior that leads to neglect of the children, abandonment of the children, and at times, the voluntary surrender of custody of the children.  This behavior must have a negative impact on the child or constitute a substantial risk of such impact.

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