Articles Posted in Today’s Divorce Climate

Published on:

Benjamin N. Neece, Attorney, Woodruff Family Law Group

               In 2017, communities exist both in the physical and virtual world. Whether you call a metropolis like Greensboro, or a small town such as Asheboro, home, there exist reasonable limits to the extent you will interact with certain individuals, the peer groups you will associate with, and how information will be transmitted. In the virtual world, those limitations are effectively eliminated and with that, an increased risk when it comes to revealing what would otherwise remain personal information. It is important for clients to understand the dangers that exist in regards to their cases when maintaining an active social media presence.

A divorce is probably one of the most difficult and emotional experiences may experience. There will be times when emotions may get the best of an individual, and there seems to be no way to express yourself and attain the peace that you seek, and often individuals may resort to releasing their emotions over social media. Whatever the reason, using this medium to obtain peace of mind during this time can be very damaging to your case and reduce your chance of success at the conclusion of the process. A common theme amongst social media outbursts results in revealing too much information.

Revealing information may be intentional or unintentional, which is why it is very important to make sure you are consciously thinking about how the information you release is perceived by not only a casual bystander but by your estranged spouse and their legal counsel. People are attracted to drama, and if you are the source, then it can lead to more eyes beholding what you have released which lead to a wider dissemination of this information. Additionally, what you may think is harmless may be easily manipulated by a trained professional to paint a picture you never intended to portray. A great way to avoid this risk is to limit the amount of information you put out there; controlling the narrative is an essential part of any legal proceeding, especially in divorce.

Continue reading →

Published on:

Benjamin N. Neece, Attorney, Woodruff Family Law Group

The information gathering stage of the legal process is commonly referred to as the “Discovery Process.” Discovery is generally guided by Rule 26 of the Federal Rules of Civil Procedure and is the way that information is gathered by associated parties to litigation. It is during this time that each party submits various requests for information from adverse parties through a variety of common methods: interrogatories (questions), request for admissions, and request for production of documents.  While it is the hope of all parties involved that each party will, in good faith, cooperate with their requests for information, there are times when that is not the case and court intervention is necessary for proper recourse; enter: Rule 37.

Where a party has failed to comply with the discovery procedures set forth by court order, party ask for discovery may ask the Court for an order compelling the requested action.  Before such a motion may be entered, it must be indicated that the moving party has in good faith contacted the party failing to make the discovery to try and secure the information without court action.  This requirement supports the keeping of unnecessary proceedings out of the court system and promoting judicial efficiency. If such a motion is granted the court will typically award reasonable costs incurred by the moving party and place the burden on nonmoving party; this burden is shifted if the court denies the motion unless there is a finding that such motion was substantially justified or other factors, make award of expenses unjust.  This is the most common form of award afforded by the courts, as in these circumstances the court is not trying to punish either party, they are merely incentivizing parties to comply with orders of the court.

Continue reading →

Published on:

By: Jennifer A. Crissman, Woodruff Family Law Group

          Whether you are a North Carolina law student, newly admitted to the practice of law, or a layperson involved in a civil lawsuit, you will hear quite a bit about service, service of process and certificates of service. In previous blogs, we have reviewed the basics of Rules 4 and 5 of The North Carolina Rules of Civil Procedure, but for those just becoming acquainted with the Rules, it ‘s hard to differentiate which rule applies, and when. For those who are involved in a lawsuit, it is always best to hire an attorney who can answer your questions fully and advise you of your rights. However, as a way to learn more about Rules 4 and 5 let’s look at some scenarios, and how these Rules regarding service are applied.

Scenario 1 – I want to keep my lawsuit as amiable as possible. Can I just hand all of the documents to the opposing party rather than getting a sheriff involved or mailing everything to them?

Yes, in theory, but it is ill-advised to do so with service of process. Rule 4 is all about getting personal jurisdiction over the opposing party so the court may enter orders in your case. Rule 5 is about giving appropriate notice to the opposing party of pleadings and other papers filed with the court. While both of these aspects are important, if you screw up service of process (serving the opposing party with your Summons and Complaint) your entire case can be dismissed for lack of personal jurisdiction. It is better to get the Sheriff to try to serve the opposing party so there is a neutral third party who can attest to the fact that the opposing party is properly served. With all subsequent pleadings, you can serve these by hand, but you must file a Certificate of Service with the Court to document this service.

Scenario 2 – My crazy ex has refused to move out of the house, even though I have asked her to leave. I want to serve her with a Complaint for Divorce from Bed and Board. Can I just leave it for her on the kitchen counter so I can avoid the extra drama?

No. Since this is a new filing Rule 4 will apply on how to serve the opposing party with the Summons and Complaint. It is important to remember that just leaving documents where the opposing party might find them is never proper under either Rule 4 or Rule 5.

Continue reading →

Published on:

Leesa M. Poag, Attorney, Woodruff Family Law Group

While Rule 4 of the North Carolina Rules of Civil Procedure proscribes the method for the filing and service of the original complaint in an action, Rule 5 deals with the filing and service of orders, pleadings, and other documents that follow that initial complaint.

The purpose behind Rule 5 is to provide notice to the opposing party of the proceedings in the case, and to provide the opposing party an opportunity to be heard by the Court before any relief is granted in the case.

This rule provides for three methods of service – hand delivery, mail, or facsimile. Hand delivery is typically accomplished in open court, but can also be satisfied by delivering documents to the opposing party’s attorney. Service by mail is the most common method used if the opposing party is proceeding pro se.  Service by mail, it is important to note, is accomplished as of the date that the document is placed in the care of the United States Postal Service, not when the documents are received by the opposing party.  When serving by mail, the party is granted three additional days within which the opposing party must receive the documents. However, only if the documents are sent through the postal service is this the case, and does not extend to any overnight delivery services.  If a party is represented by counsel, service will often be accomplished through facsimile. Documents that are to be served via fax must be sent by 5pm on a business day.  If the document is sent after 5pm, it will be deemed to have been served on the following business day.  If there is a dispute as to the date of service, the fax confirmation report will be controlling to determine the date of service.  As such, this confirmation report should be attached to any documents that are served on opposing counsel by facsimile.

Continue reading →

Published on:

Benjamin N. Neece, Attorney, Woodruff Family Law Group

“Behind the Bar” is a multi-part blog series that will focus on specific aspects of the practice of law ranging from the Rules of Evidence, Rules of Civil Procedure, and other important legal practice technicalities in an effort to provide readers a better understanding of regularly overlooked and misunderstood concepts that lawyers are faced with on a day-to-day basis. 

In our previous installment of “Behind the Bar” we touched on the first part of Rule 4: Service of process, and the requirements involving the “who” and “what” aspects of the rule. In this installment we will complete our review of Rule 4 by discussing the “when,” “where,” and “how;” relating to proper service of a Summons.

Proper service to a “natural person” can be attained by delivering a copy of the Summons and Complaint (S&C) to the individual personally, or leaving copies at the dwelling house or regular abode with “someone of suitable age/discretion residing therein.” It can also be accomplished by delivering a copy of the S&C to an agent authorized by appointment (an Attorney) or law to be served or accept service; mailing a copy by certified mail or registered mail, return receipt requested, addressed to party, and delivering it; or using a designated delivery service authorized under the law to effectuate process and obtaining a delivery receipt. There exist many other potential types of parties to legal proceedings, each requiring slight variations to the rule; but regardless of who the party to receive process is, Rule 4 provides many avenues to meet the requirements set forth therein.

Even in this day and age, with all the advantages of technology and information, the circumstance may arise where personal execution of service upon an individual is effectively impossible because they are unable to be located.  In this situation, where a party cannot, with due diligence be served by normal means, they may be served by publication.  Service by this means consists of publishing notice of service once a week for three consecutive weeks in a newspaper which is qualified for legal advertising which is circulated in the area where party to be served is reasonably believed to be located, or if that information is unknown, in the county where action is pending.  In either case, proof of service must be completed by means of submitting affidavits with the court showing that service was properly executed and where service was via publication, the affidavit must state why publication was necessary and proof of said publication.

Continue reading →

Published on:

Benjamin N. Neece, Attorney, Woodruff Family Law Group

“Behind the Bar” is a multi-part blog series that will focus on specific aspects of the practice of law ranging from the Rules of Evidence, Rules of Civil Procedure, and other important legal practice technicalities in an effort to provide readers a better understanding of regularly overlooked and misunderstood concepts that lawyers are faced with on a day-to-day basis.

No two legal proceedings are alike, each has a different set of facts, parties, circumstances, and inevitably, different outcomes.  One thing most share, however, is the seemingly endless number of steps and hoops to climb and jump through in reaching a conclusion. Why, you might ask, does the legal process take so long and be so complicated?  A big part of the answer to this question involves behind the scenes activity known as the “Rules of Civil Procedure,” which comprehensively regulates every aspect of legal proceedings in extensive detail. Rule 4 is one of the most basic and fundamental rules that regulates Summons’, the process of service, and the consequences of failing to follow proper procedure.

By design, Rule 4 provides a detailed roadmap of how to effectuate service of process while providing a framework for providing notice of claims and proceedings to adverse parties. While purely a technical aspect of the legal process, the vitality of abiding by this rule cannot be understated as no court has jurisdiction to proceed with a legal matter until proper service occurs. Simply put, it does not matter how many other boxes are checked in the legal process, failure to meet the requirements under Rule 4 will keep your case on the sidelines until they are met. Continue reading →

Published on:

Leesa M. Poag, Attorney, Woodruff Family Law Group

In recent legal news, the Mississippi state Senate has passed new legislation that will have citizens of Greensboro and divorce attorneys alike glad that we live in North Carolina.

Unlike North Carolina, Mississippi law recognizes both fault-based and no-fault divorces. If the requirements are not met for a no-fault divorce, you must prove to a judge that your spouse has committed one of the fault grounds enumerated by the Court in order to be granted your divorce.  The new legislation has added two additional grounds for a fault-based divorce.

The only ground permitted for a no-fault divorce in Mississippi is irreconcilable differences. For the Court to grant this no-fault divorce, both parties must agree that there are irreconcilable differences between the parties that prevent them from continuing their relationship as husband and wife, and both parties must agree to seek the divorce.

If the parties don’t agree that they should divorce, the only way for a party to be granted a divorce is by proving to the court that their spouse has committed one of the fault grounds. One side must prove to the court that the other has committed some fault that should allow the party to be granted a divorce.  The most common grounds of fault are typically adultery and desertion.

The new legislation passed by the Senate seeks to add two more grounds – separation and domestic violence.  The separation ground would require that the parties have lived separate and apart for at least two years without the intention to resume the marital relationship.  The domestic violence ground would allow a person to seek a divorce if their spouse has perpetrated cruel and inhumane treatment towards them, including spousal domestic abuse.

Continue reading →

Published on:

by Benjamin Neece, Attorney

With Valentine’s Day around the corner, love is in the air and it is a great time to express it to those who you care about most.  It is important that during this festive season that you remember that your children are the ones who need your love the most and we are here to help with some creative ideas on how to make the most of your time with them.  When it comes to time with your children, it is important to remember the deliberate nature in which you must approach each moment you have with them.  Visitation must become more than simply being together; it is of the utmost importance to engage your children, take part in new and exciting experiences with them, and create lasting memories that you can share together for years to come.  Valentine’s Day is a great opportunity to express and grow the love between you and your children and it never hurts to have a few ideas in your back pocket to make your time together special.

For younger children Valentine’s Day is a big deal; a good way to keep within the spirit of the holiday is to set aside time for fun and celebration.  A trip to Charlotte, NC provides many options to accomplish this.  Charlotte is home to the Discovery Place Museum- a childhood utopia that is sure to keep everyone entertained while engaging in interactive learning.  Afterwards, crafting valentines to exchange with each other and even take home is a great way for kids to express their love to both parents in a meaningful and fulfilling way. Continue reading →

Published on:

Leesa M. Poag, Attorney, Woodruff Family Law Group

Boy meets girl. They fall in love.  Before you know it, he’s down on one knee with an expensive diamond ring in his hand.  With Valentines Day quickly approaching, it is a scene that is sure to play out all across the Triad.  But what happens when the relationship ends before the wedding bells have even had a chance to ring?  When instead of meeting with a wedding planner, the couple is turning to a family law attorney for advice.

As difficult as a broken engagement can be on a couple, the heartache and hard feelings only grow more intense when the formerly-engaged couple cannot agree on who should keep that shiny souvenir of the marriage that was never meant to be. When the plan changes from walking down the aisle to walking away, there is still that lingering question that must be answered – who gets to keep the engagement ring?

Under the early common law, Courts allowed these jilted fiancés to recover monetary damages when the wedding was called off under a claim of breach of promise to marry.  Though the legal system seems to have realized that you can’t put a price tag on a broken heart and distanced itself from these types of claims, the question of the engagement ring is still a remarkably common dispute facing the courts today.

Should the person who initially purchased the ring be entitled to its return?  If it was given as a gift, should the recipient be allowed to keep it?  The majority of courts have held that the answer to those questions comes down to the intention of the giver.

Continue reading →

Published on:

Dana M. Horlick, Attorney, Woodruff Family Law Group13062458_1042739802458603_2436945721037467362_n-214x300

 

Directly after the holidays happens to be one of the busiest times of the year for divorce attorneys when it comes to divorce filings. The increase in divorce filings is a trend that is seen nationwide, including here in Greensboro, North Carolina. According to the American Academy of Matrimonial Lawyers, there is typically a spike of 25% to 30% in divorce filings every year in January. There is a similar trend in the United Kingdom, where one in five couples plan to divorce after the holidays.

Now when you think about it, this trend makes sense, given the nature of the holidays themselves and the sometimes adversarial nature of the divorce filings themselves. There are several factors at play when it comes to the uptick in divorce filings right after the holidays and at the start of the new year.

One thread deals with the holidays as a precipitating factor towards a divorce filing. The holidays may be a stressful time for couples, especially when there are already difficulties in the marriage. There is the financial stress of getting through the holidays and purchasing the presents. There is also the factor of spending time with your in-laws or just having an increased amount of family time. You might be in the house with your partner for an extended period. If there are problems already present in the marriage this can become an issue; even without pre-existing problems, this may place a strain on the relationship. Having to put on a happy face for your relatives and your children can also be very stressful.

Continue reading →